THE MARINE MAMMAL PROTECTION ACT
PART III
Y 4. H 53:103-89 .'
II. hrl.. D,. R ,1 ProUc HEAEING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT
AND NATURAL RESOURCES
OF THE
COMMITTEE ON
MERCHANT MARINE AND FISHERIES
HOUSE OP REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
THE CAPTURE AND PUBLIC DISPLAY OF MARINE
MAMMALS AND THE DIFFICULTIES FACING MARINE
BIOLOGISTS UNDER THE ACT'S CURRENT PROVI-
SIONS
FEBRUARY 10, 1994
Serial No. 103-89
Printed for the use of the Committee on Merchant Marine and Fisheries
JUL 2 J 1994
U.S. GOVERNMENT PRINTING OFFICE
79-705 CC WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-044382-2
JO 3
THE MARINE MAMMAL PROTECTION ACT
PART III
Y 4. M 53: 103-89 .'
ih. B . , , HEAEING
The Oirine Oannal Protec
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT
AND NATURAL RESOURCES
OF THE
COMMITTEE ON
MERCHANT MARINE AND FISHERIES
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
THE CAPTURE AND PUBLIC DISPLAY OF MARINE
MAMMALS AND THE DIFFICULTIES FACING MARINE
BIOLOGISTS UNDER THE ACT'S CURRENT PROVI-
SIONS
FEBRUARY 10, 1994
Serial No. 103-89
Printed for the use of the Committee on Merchant Marine and Fisheries
JUL 2 J 1994
U.S. GOVERNMENT PRINTING OFFICE
79-705 CC WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington. DC 20402
ISBN 0-16-044382-2
COMMITTEE ON MERCHANT MARINE AND FISHERIES
GERRY E. STUDDS, Massachusetts, Chairman
WILLIAM J. HUGHES, New Jersey
EARL HUTTO, Florida
W.J. (BILLY) TAUZIN, Louisiana
WILLIAM O. LIPINSKI, Illinois
SOLOMON P. ORTIZ, Texas
THOMAS J. MANTON, New York
OWEN B. PICKETT, Virginia
GEORGE J. HOCHBRUECKNER, New York
FRANK PALLONE, Jr., New Jersey
GREG LAUGHLIN, Texas
JOLENE UNSOELD, Washington
GENE TAYLOR, Mississippi
JACK REED, Rhode Island
H. MARTIN LANCASTER, North Carolina
THOMAS H. ANDREWS, Maine
ELIZABETH FURSE, Oregon
LYNN SCHENK, California
GENE GREEN, Texas
ALCEE L. HASTINGS, Florida
DAN HAMBURG, California
BLANCHE M. LAMBERT, Arkansas
ANNA G. ESHOO, California
THOMAS J. BARLOW, III, Kentucky
BART STUPAK, Michigan
BENNIE G. THOMPSON, Mississippi
MARIA CANTWELL, Washington
PETER DEUTSCH, Florida
GARY L. ACKERMAN, New York
JACK FIELDS, Texas
DON YOUNG, Alaska
HERBERT H. BATEMAN, Virginia
JIM SAXTON, New Jersey
HOWARD COBLE, North Carolina
CURT WELDON, Pennsylvania
JAMES M. INHOFE, Oklahoma
ARTHUR RAVENEL, Jr., South Carolina
WAYNE T. GILCHREST, Maryland
RANDY "DUKE" CUNNINGHAM, California
JACK KINGSTON, Georgia
TILLIE K. FOWLER, Florida
MICHAEL N. CASTLE, Delaware
PETER T. KING, New York
LINCOLN DIAZ-BALART, Florida
RICHARD W. POMBO, California
HELEN DELICH BENTLEY, Maryland
CHARLES H. TAYLOR, North Carolina
PETER G. TORKILDSEN, Massachusetts
Jeffrey R. Pike, Chief of Staff
Mary J. Fusco Kitsos, Chief Clerk
Harry F. Burroughs, Minority Staff Director
Cynthia M. Wilkinson, Minority Chief Counsel
Subcommittee on Environment and Natural Resources
GERRY E. STUDDS, Massachusetts, Chairman
GEORGE J. HOCHBRUECKNER, New York
FRANK PALLONE, Jr., New Jersey
GREG LAUGHLIN, Texas
JOLENE UNSOELD, Washington
JACK REED, Rhode Island
ELIZABETH FURSE, Oregon
DAN HAMBURG, California
BLANCHE M. LAMBERT, Arkansas
ANNA G. ESHOO, California
EARL HUTTO, Florida
W.J. (BILLY) TAUZIN, Louisiana
SOLOMON P. ORTIZ, Texas
BENNIE G. THOMPSON, Mississippi
Daniel Ashe, Staff Director
Karen Steuer, Deputy Staff Director
JIM SAXTON, New Jersey
DON YOUNG, Alaska
CURT WELDON, Pennsylvania
ARTHUR RAVENEL, Jr., South Carolina
WAYNE T. GILCHREST, Maryland
RANDY "DUKE" CUNNINGHAM, California
MICHAEL N. CASTLE, Delaware
CHARLES H. TAYLOR, North Carolina
JACK FIELDS, Texas (Ex Officio)
(II)
CONTENTS
Page
Hearing held February 10, 1994 1
Statement of:
Beattie, Ms. Mollie, Director, U.S. Fish and Wildlife Service, Department
of the Interior 14
Prepared statement 61
Bentley, Hon. Helen Delich, a U.S. Representative from Maryland 3
Bilirakis, Hon. Michael, a U.S. Representative from Florida 7
Cunningham, Hon. Randy "Duke", a U.S. Representative from California 32
Fields, Hon. Jack, a U.S. Representative from Texas, and Ranking Minor-
ity Member, Committee on Merchant Marine and Fisheries 3
Foster, Dr. Nancy, Deputy Assistant Administrator for Fisheries, NOAA,
Department of Commerce 13
Prepared statement 40
Gilchrest, Hon. Wayne, a U.S. Representative from Maryland 36
Goss, Hon. Porter, a U.S. Representative from Florida 9
Prepared statement 11
Grandy, John, Vice President for Wildlife and Habitat Protection, Hu-
mane Society of the United States 20
Prepared statement 104
Jenkins, Robert, American Zoo and Aquarium Association, Alliance for
Marine Mammal Parties and Aquariums 18
Prepared statement 89
Lipinski, Hon. William O., a U.S. Representative from Illinois 8
Ortiz, Hon. Solomon P., a U.S. Representative from Texas, and Chair-
man, Subcommittee on Oceanography, Gulf of Mexico, and the Outer
Continental Shelf 5
Pombo, Hon. Richard W., a U.S. Representative from California 4
Pungowiyi, Caleb, President, Inuit Circumpolar Conference 24
Prepared statement 117
Reynolds, Dr. John E., Chairman, Marine Mammal Commission 16
Prepared statement 72
Saxton, Hon. Jim, a U.S. Representative from New Jersey, and Ranking
Minority Member, Subcommittee on Environment and Natural Re-
sources 2
Schenk, Hon. Lynn, a U.S. Representative from California 6
Studds, Hon. Gerry E., a U.S. Representative from Massachusetts, and
Chairman, Subcommittee on Environment and Natural Resources 1
Tyack, Dr. Peter, Research associate, Woods Hole Oceanographic Institu-
tion 22
Prepared statement 112
Young, Hon. Don, a U.S. Representative from Alaska, and Ranking Mi-
nority Member, Subcommittee on Fisheries Management 5
Additional material supplied:
Baur, Donald C. (Prepared for the Marine Mammal Commission): Ex-
cerpts from "Reconciling the Legal Mechanisms to Protect and Manage
Polar Bears Under United States Laws and the Agreement for the
Conservation of Polar Bears" 156
Dewey, Robert L. (Defenders of Wildlife and the Wilderness Society):
Statement on the need for Congress to amend the MMPA to provide
the U.S. Fish and Wildlife Service with affirmative authority to protect
polar bear habitat 148
Dolphin Quest, Hawaii: Testimony on the reauthorization of the MMPA .. 140
(ill)
IV
Page
Additional material supplied — Continued
Foster, Dr. Nancy (NOAA): Answers to questions submitted by the Sub-
committee following the hearing 59
Hodges, John A. (Marine Mammal Coalition): Position of the Coalition
concerning reauthorization of the MMPA 131
Merculieff, Larry (on behalf of the Bering Sea Coalition and the City
of St. Paul, Alaska): Testimony on the reauthorization of the MMPA 169
MARINE MAMMAL PROTECTION ACT
PART III
THURSDAY, FEBRUARY 10, 1994
House of Representatives, Subcommittee on Envi-
ronmental and Natural Resources, Committee on
Merchant Marine and Fisheries,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:30, in room 1334,
Longworth House Office Building, Hon. Gerry E. Studds [chairman
of the Subcommittee] presiding.
Present: Representatives Studds, Hochbrueckner, Pallone,
Gilchrest, Reed, Hamburg, Eshoo, Ortiz, Saxton, Cunningham, and
Young.
Staff Present: Karen Steuer, Deputy Staff Director; Tod Preston,
Professional Staff; Marvadell Zeeb, Staff Assistant; Harry Bur-
roughs, Minority Staff Director; Cynthia Wilkinson, Minority Chief
Counsel; Margherita Woods, Minority Staff Assistant; and Rod
Moore, Minority Professional Staff.
STATEMENT OF HON. GERRY E. STUDDS, A U.S. REPRESENTA-
TIVE FROM MASSACHUSETTS, AND CHAIRMAN, SUBCOMMIT-
TEE ON ENVIRONMENT AND NATURAL RESOURCES
Mr. Studds. The Subcommittee will come to order. I think we
should announce the reappointment to the 104th Congress of the
ranking member of this Committee, the gentleman from Texas. Un-
fortunately, the other 49 States have elections and — we got another
one? Also? No.
This morning, although the issues we are going to cover have not
been dealt with at our hearings to date on the reauthorization of
the Marine Mammal Protection Act, one of them has been dis-
cussed in just about every household that has seen "Free Willy":
the capture and public display of marine mammals. In fact, it is
this issue that has brought one of our colleagues from Florida here
to testify this morning. We were originally scheduled to have two
of our colleagues from Florida with us; however, Mr. Bilirakis has
called with his apologies, he is ill and unable to attend, but we will
indeed enter his testimony into the record. I would like to point out
to our colleague from Alaska how impressed we are that we are
hearing from two members from his side of the aisle on the need
for more consideration for Flipper.
And I also point out that the gentleman, as we will shortly learn,
I fear, is armed beyond usual this morning. In the traditional
hands-on style of this Committee's hearings, we had intended to
bring dolphins into the hearing room this morning as we discussed
(l)
this issue, but NMFS denied us a permit, mumbling something
about the need to be an educational institution.
We will also hear from a representative from the research com-
munity, in fact from my own constituency this morning, about the
difficulties facing marine mammal biologists under the Act's cur-
rent provisions; provisions which, I understand, make it more dif-
ficult to photograph a whale than it is to kill one in one's net. By
the way, Dr. T^ack, I am not sure it was wise to point out that a
research institution in my district consistently broke the law for
two years while they rescued whales. What the heck.
I am also pleased that we have with us a representative from the
Alaska native community to discuss how to improve the relation-
ship between the agencies and the natives whose lives depend on
subsistence uses of marine mammals.
It should be an interesting and productive morning and I am de-
lighted to yield to the ranking member, the gentleman from New
Jersey.
Mr. Young. Mr. Chairman, I
Mr. Studds. Rank is relative. I yield it to the ranking member.
STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE
FROM NEW JERSEY, AND RANKING MINORITY MEMBER,
SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RE-
SOURCES
Mr. Saxton. Mr. Chairman, hopefully this hearing can begin to
end the controversy surrounding the Marine Mammal Protection
Act. We are working closely in a bipartisan fashion to reauthorize
the MMPA, hopefully, by the April first deadline.
The issues we face today are contentious. Many on the panel
have concerns about whether or not agency overreaching is going
to take place, but my concerns stem from the proposed permit regu-
lations that the National Marine Fisheries Service had published
in October.
Public policy changes of this magnitude require congressional
oversight, and that is one reason we are here. I am pleased the
Subcommittee will take some time today to examine the NMFS
proposed regulations and address these concerns.
My concerns center on NMFS's intention to require permit hold-
ers to post a $10,000 surety bond or to make other arrangements
for each and every animal in their care. While the reason for the
bond is not entirely unreasonable, to offset costs for caring for ani-
mals should the facility cease functioning, I am not convinced that
NMFS has the statutory authority under the MMPA to require
such a bond.
In addition, under the proposed regulations, it seems that NMFS
will have to review extensive and intricate permit applications cov-
ering various obligations. These include facility permits, amend-
ments to facility permits, and mandatory 5-year renewals of such
permits. With all the agency's increased responsibility, it will re-
quire an increase in manpower and, in my view, some additional
money. And my question is where will that come from? I am not
persuaded that increased administrative expenditures are the best
use of our limited marine mammal protection dollars.
Finally and most troubling, the proposed regulations would also
set a precedent for industry to pay for government's writing of en-
vironmental assessments and environmental impact statements.
Such policy would have ramifications beyond MMPA and should be
carefully considered before being implemented.
So I look forward, Mr. Chairman, to the many comments and
suggestions from the witnesses. Hopefully, we can work together on
a final amicable agreement to these and other issues we will surely
address during this hearing.
May I ask unanimous consent that the statements of Mr. Fields
and Ms. Bentley be placed in the record, Mr. Chairman, before I
yield to the rank member. That is my prerogative.
[Statement of Mr. Fields follows:]
Statement of Hon. Jack Fields, a U.S. Representative from Texas, and
Ranking Minority Member, Committee on Merchant Marine and Fisheries
Mr. Chairman, the Marine Mammal Protection Act (MMPA) was enacted in 1972
for the purpose of ensuring that marine mammals are maintained at, or in some
cases restored to, healthy population levels.
The MMPA governs a variety of subjects, including public display, scientific re-
search, subsistence use of marine mammals, and the incidental take of marine
mammals during commercial fishing operations. The hearing this morning will focus
on the first three issues.
The provisions related to commercial fishing were the subject of two hearings be-
fore the Subcommittee last year. Those hearings were time-sensitive because a 5-
year exemption from the prohibition on taking marine mammals, which Congress
had afforded to the commercial fishing industry, was set to expire. The industry
faced a serious crisis back in 1988, and Congress had to find a way to keep them
in business while still maintaining the goals of the MMPA. During this 5-year pe-
riod, the National Marine Fisheries Service collected data on interactions between
commercial fisheries and marine mammals, determined the status of marine mam-
mal stocks, and tried to develop a permanent regime governing this specific inter-
action.
With the adoption of H.R. 3049 last year, we extended the exemption to April 1,
1994, to give the fishing industry and the environmental community time to work
out their differences. While this issue has proven to be rather difficult, I understand
that both groups are working diligently to resolve the issues in contention.
Today's nearing will concentrate on other important aspects of the MMPA — public
display, scientific research, importation of marine mammal products, and subsist-
ence use. We will have the opportunity to examine whether the administrative proc-
ess can be streamlined to better serve the public display industry without harming
marine mammals. We will explore whether existing cooperative management agree-
ments have been successful and whether new agreements should be encouraged and
funded. We will look at whether the current permit program administered by the
National Marine Fisheries Service is an obstacle to research as some scientists have
alleged. We will also analyze the Administration's policies governing the take and
display of non-depleted marine mammals for educational or conservation programs.
Finally, Mr. Chairman, the largest group of consumptive users of marine mam-
mals in the United States are Congressman Young's constituents. Their use of ma-
rine mammals for food, clothing, shelter, handicrafts, and cultural purposes pre-
dates the European settlement of Alaska and continues to this day. I hope that we
will listen carefully to the concerns and needs presented by the Alaskan natives
today, and I pledge my support to the Congressman for all Alaska to work with the
Chairman in trying to resolve this issue.
With that, Mr. Chairman, I welcome our witnesses and look forward to the testi-
mony they will present. Thank you.
[Statement of Ms. Bentley follows:]
Statement of Hon. Helen Delich Bentley, a U.S. Representative from
Maryland
Good morning, Mr. Chairman. On behalf of the National Aquarium in Baltimore
and other marine mammal parks and aquariums, I would like to thank you for hold-
ing this important hearing today on the reauthorization of the Marine Mammal Pro-
tection Act. Because the Marine Mammal Protection Act continues to have such a
positive impact on the future of marine mammal education, scientific research, and
conservation programs, I wanted to make sure my Committee colleagues were aware
of a looming thunderstorm that is about to strike the fundamental purposes and
policies of the Marine Mammal Protection Act.
The thunderstorm, of which I speak, is in the form of proposed permit regulations
from the National Marine Fisheries Service (NMFS).
Specifically, NMFS would include captive marine mammals in the definition of
the term "take". I believe that "take" should be defined as covering only activities
"in the wild". Otherwise, NMFS will have jurisdiction from "the wild" to well beyond
the fence. This action would have serious consequences to the zoological commu-
nity's education, scientific and conservation programs in the form of additional bu-
reaucracy which is entirely unnecessary. Further, the current language would em-
power NMFS to set the standards for the care and maintenance of marine mammals
within their jurisdiction. This proposed action is contrary to the Clinton Administra-
tion's policy to streamline government agencies.
An example: NMFS would require a facility to first apply for a permit to authorize
a specific activity; then prior to the activity, the facility would have to get authoriza-
tion. Finally, one week from the activity, the facility would have to inform NMFS
where, when, and how the activity will be performed — even though NMFS has al-
ready been informed of the activity from the original permit application. Not only
does this seem to be a redundancy, but an expensive redundancy at that.
Mr. Chairman, I am very proud of the Marine Mammal Protection Act. It has
given our country's zoos and aquariums the foundation from which to secure the fu-
ture of marine mammal research. They have developed productive breeding pro-
grams of endangered and threatened species, created education programs used by
universities coast to coast, and have assisted in returning hundreds of animals back
to the wild.
I look forward to hearing the views of our distinguished panel on this potential
crisis. I believe we must reauthorize the Marine Mammal Protection Act without im-
peding the zoological community's future. Thank you, Mr. Chairman.
[Statement of Mr. Pombo follows]:
Statement of Hon. Richard Pombo, a U.S. Representative from California
Mr. Chairman, thank you for holding today's hearing on the reauthorization of the
Marine Mammal Protection Act (MMPA). In 1972, Congress took steps to address
the declining marine mammal population by enacting this important legislation.
Today I want to express my concerns about sections of this Act which deal with
the public display of marine mammals. It is quite clear, the public display commu-
nity has been able to educate young and old — people around the world — to the im-
portance of marine mammals in our ecosystem.
Every year, millions of people visit marine life parks, aquariums, and zoos to
learn more about marine mammals. Some of those millions of individuals visit Ma-
rine World Africa USA. Located in Vallejo, California, close to my congressional dis-
trict, many of my constituents visit the park for a day of excitement and education.
At Marine World individuals have the ability to experience marine mammals in an
up-close environment. Individuals walk away knowing a little more about marine
mammals and the environment. This is confirmed by a recent Ropers poll that re-
ported that 86% of visitors to zoos and aquariums are more likely to be committed
to environmental conservation as a result of their visit.
The education programs in which Marine World has developed provides elemen-
tary schools, high schools, and universities an in-depth understanding into all as-
pects of marine mammals. As you may be aware, the commitment to marine mam-
mals does not end in the classroom. Members of the Alliance of Marine Mammal
Parks and Aquariums have spent over $20 million in the past 5 years on research
that helps stranded animals as well as wild populations.
As we move through the process of the reauthorization of this bill, Mr. Chairman,
I hope that the Merchant Marine and Fisheries Committee can work in a bipartisan
manner to reinforce the original intent of this Act and to acknowledge the work the
public display community has done over the last 20 years.
Mr. Studds. I am sure the ranking members of the majority side
will be pleased to allow us to hear from the distinguished member
from Alaska.
STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE
FROM ALASKA, AND RANKING MINORITY MEMBER, SUB-
COMMITTEE ON FISHERIES MANAGEMENT
Mr. Young. I thank the Chairman and the ranking member for
their kindness for recognizing me. Mr. Chairman, I know this hear-
ing is not about fisheries interaction with marine mammals, so I
will keep my remarks brief, I know that makes everybody happy.
But one of the topics of concern to me today is the effect of the Act
on native Alaskans who take marine mammals for subsistence. Our
staffs have been working on amendments that will solve some of
the problems identified by the native community. However, we
must all recognize the bottom line, which is that the right of Alas-
kan natives to harvest marine mammals for subsistence should not
be taken away by Congress, or taken away by any agency.
The other issue we will address today is that of public display
of marine mammals. My good friend just talked about that. I
thought we had resolved this problem in 1988. Unfortunately, the
National Marine Fisheries Services has taken 5 years to produce
two hundred pages of regulations that only make the problem
worse. The zoos and aquariums of this country perform a valuable
role in educating the public on marine mammal problems. They as-
sist stranded marine mammals and nurse them back to health.
They work on protecting endangered species.
I want to make clear that I intend to support our nation's zoos
and aquariums for letting them continue the good work they have
done.
Mr. Chairman, I work very closely with the groups that display
these mammals, especially from Alaska who are after the orca
whale. I finally won that permit and now after they decided it was
unwise to try to capture wild animals, they proceeded to have these
animals give birth to new ones within their aquariums. Along
comes NMFS, these aren't yours, these are ours. This is govern-
ment stupidity at the highest degree. And I hope we can look at
these regulations and try to express our dissatisfaction on what
they are trying to do with units that do protect the marine mam-
mals and provide for the public on an educational basis. This is a
classic example that the government cannot do what is correct, I
don't think at any one time. Thank you, Mr. Chairman.
Mr. Studds. Are there other members who are compelled to
make an opening statement
Mr. Ortiz. I would just like to include my statement for the
record, Mr. Chairman.
Mr. Studds. Without objection. Are there others?
[Statement of Mr. Ortiz follows:]
Statement of Hon. Solomon P. Ortiz, a U.S. Representative from Texas, and
Chairman, Subcommittee on Oceanography, Gulf of Mexico, and the Outer
Continental Shelf
I want to thank the Chairman for holding this hearing today to examine how the
Marine Mammal Protection Act can be reauthorized in a manner that can best en-
sure the welfare and safety of marine mammals within a regulatory framework that
properly represents the legitimate interests of the public display and scientific com-
munities.
Anyone who has had the opportunity to observe a dolphin, sea lion, or manatee
in the wild or at a zoo or aquatic park can recognize both their ecological and aes-
thetic value. Like many of the other members of this Committee, I believe that we
need to do what is necessary to ensure the health and preservation of our marine
mammal species for future generations.
The zoological and marine mammal public display community plays an important
part in this effort by demonstrating the value of marine mammal species and visibly
displaying the close relationship between human behavior and the health of these
species. As such, I hope that in the process of drafting a reauthorization of the
MMPA, this Committee will support amendments to the Act that will allow respon-
sible institutions to conduct their important display, education, and conservation
programs within a sensible and practical regulatory scheme that avoids unnecessary
duplicative and overlapping requirements. It is vital that we ensure the proper care
and treatment of marine mammals; however, I hope we can do so in a way that
will promote the dissemination to the public of information about the value of these
species, rather than deter it.
I look forward to hearing from the witnesses today, and, likewise, I look forward
to working with the Chairman and the ranking member, Representative Saxton, on
the large number of issues that need to be resolved as we work towards the reau-
thorization of the MMPA.
[Statement of Ms. Schenk follows]:
Statement of Hon. Lynn Schenk, a U.S. Representative from California
Thank you, Mr. Chairman. As a member whose district is home to a Sea World
facility, I am very interested in the issues raised as this Subcommittee considers
the reauthorization of the Marine Mammal Protection Act (MMPA), particularly
those aspects of the reauthorization affecting zoological institutions. I appreciate
being able to submit this statement for the hearing record.
The MMPA was enacted in 1972 to conserve declining marine mammal popu-
lations in the wild from human threats to their continued existence. The Act safe-
guards marine mammals by managing human activities affecting them and their
natural habitat. Sea World and other members of the Alliance of Marine Mammal
Parks and Aquariums (Alliance) and of the American Association of Zoological Parks
and Aquariums (AZA) continually work toward marine mammal protection in a
number of ways including education, research, rescue and rehabilitation, and care
and maintenance. The MMPA specifically recognizes the important role that the zo-
ological community plays in educating the public about the importance of marine
mammal protection and conservation. Congress should reaffirm this importance as
it reauthorizes the MMPA.
The benefits derived from the zoological community's education, research, rescue
and rehabilitation, and care and maintenance efforts help to protect marine mam-
mals and their habitat at no expense to the Federal Government. The great service
that the zoological community provides in these areas should be recognized and
should not be discouraged by unnecessary regulation.
We should take advantage of this opportunity to clarify various issues that have
been raised over the past 5 years. Such issues generally address the proper roles
that the National Marine Fisheries Service and the Department of Agriculture's
Animal and Plant Health Inspection Service (APHIS) should play in regulating the
various activities affecting marine mammals. The MMPA and its legislative history
indicate that Congress intended the statute to only apply to marine mammals in
the wild. The National Marine Fisheries Service and the U.S. Fish and Wildlife
Service are responsible for enforcing the Act. The Animal Welfare Act (AW A), en-
forced by APHIS, regulates the care and maintenance of marine mammals in zoolog-
ical facilities. Through the years, much confusion has developed over what role each
agency should play. This confusion has led to duplication of effort, conflicting stand-
ards, and law suits. Resources are consequently diverted from protecting marine
mammals to litigation and other diversionary activities.
The MMPA should be clarified to further strengthen Congress' original intent that
NMFS has and should maintain the authority to issue permits for 'takes" from the
wild and for the importation of marine mammals or marine mammal parts from a
foreign country. The term "take" should be explicitly clarified to include only activi-
ties in the wild or affecting a marine mammal's natural habitat.
The law should also be revised to make it clear that once a permit is issued, the
marine mammal and its progeny can be lawfully owned, possessed, transported,
sold, or purchased without the need for any additional permit, provided the Sec-
retary of Commerce is notified in advance of any such transaction and that the
transaction is for a purpose authorized by the MMPA.
NMFS should maintain its authority to enforce criminal and civil penalties
against anyone possessing a marine mammal or marine mammal part in violation
of the Act. In addition, NMFS should continue its current practice of collecting an-
nual reports from anyone in possession of a marine mammal, its progeny, or a ma-
rine mammal part. This would enable the Secretary to keep track of the status of
the animal or part and to enforce the Act.
I believe that the NMFS rule proposed last October represents a major public pol-
icy shift from the current scheme for regulating activities affecting marine mam-
mals. If adopted, this rule would create new requirements, a new Federal bureauc-
racy at NMFS, and has the potential for creating another Federal bureaucracy at
the U.S. Fish and Wildlife Service. I hope that NMFS will refrain from continuing
to promulgate this rule until Congress has addressed the issues it raises in this re-
authorization process.
Mr. Chairman, I look forward to working with you and the other members of the
Committee during the coming months. Together, I believe that we can craft legisla-
tion that recognizes the valuable role that zoological facilities play in educating the
public about the wonders of marine mammals. Additionally, I believe that we will
be able to clarify the regulatory responsibilities of NMFS for marine mammals.
[Statement of Mr. Bilirakis follows:]
Statement of Hon. Mike Bilirakis, a U.S. Representative from Florida
First, I would like to take this opportunity to thank Chairman Studds and the
Committee for holding these important hearings on the reauthorization of the Ma-
rine Mammal Protection Act and the issue of public display.
As most of you know, Florida holds about 40 percent of all captive dolphins. Fur-
thermore, most of the dolphins that are seen in theme parks across the country and
the world were probably captured or have ultimately come from Florida waters.
In 1972, Congress passed the Marine Mammal Protection Act or (MMPA). The
purpose of this legislation was to ensure that these mammals were maintained at,
or restored to, healthy population levels. The Act established a moratorium on tak-
ing or importing marine mammals except for certain activities regulated and per-
mitted under the Act. These permitted activities include public display and scientific
research.
Unfortunately, jurisdiction over marine mammals is divided among several agen-
cies. I believe we have a classic example of the dangers of Federal bureaucracy. We
have several agencies contradicting one another with regard to this Act, and in some
cases, I believe the agencies are not doing their job correctly to ensure that these
mammals are being treated humanely and captured properly.
Late in the 102d Congress, I introduced legislation titled the Marine Mammal
Capture, Export and Public Display Act. I reintroduced this bill in the 103d Con-
gress on January 27, 1993, and, to date, 43 Members of the House have joined as
cosponsors.
Simply put, I believe more can be done to prevent the needless deaths of our na-
tion's marine mammal population. My bill, H.R. 656, aims to provide greater protec-
tion for these animals in three main areas: capture, export, and public display.
With regard to export, currently, the Marine Mammal Protection Act is silent on
the export of marine mammals either caught in U.S. waters or bred in U.S. zoos
and aquaria.
My bill would end this silence. The bill bans the export of marine mammals, un-
less the animal is exported in order to improve its health or well-being. It is simply
hypocritical to place stringent requirements on theme parks and oceanariums in this
country but allow dolphins to be exported to other countries where they may be mis-
treated.
Public display standards are also outlined in my bill, and I believe that the safety
standards applied to dolphins and other marine mammals in captivity must be re-
examined. My bill would require the Secretary of Agriculture to review the stand-
ards established under the Animal Welfare Act for the care and habitat of marine
mammals in captivity.
Specifically, the Secretary would determine whether or not those standards are
adequate, considering: (1) the sizes of marine mammals, (2) current knowledge of
marine mammal physiology and behavior with respect to their need for exercise, au-
ditory capabilities, and their pre- and post-natal requirements, (3) their psycho-
logical and physical well-being, (4) their needs related to social grouping, including
minimum group size, gender, mix, and age composition, (5) interspecies compatibil-
ity, and (6) environmental modifications that might allow for more normal behavior
and social interaction.
H.R. 656 also addresses research permits. Permits for research on marine mam-
mals would be limited to 2 years, unless the Secretary of Commerce issues an exten-
8
sion for a long-term study. Guidelines would be set up for release of marine mam-
mals taken for research back into the wild so that this is done in the most humane
manner possible. The Bill requires that the animals be released at their original site
of capture and encourages non-invasive research whenever possible.
Finally, my Bill imposes increased penalties for non-compliance. The Bill would
raise the penalties for those who violate provisions of the Animal Welfare Act relat-
ing to marine mammals to equality with the penalties under the Marine Mammal
Protection Act. Specifically, the Bill establishes civil penalties of not more than
$10,000 for each violation; criminal penalties for a knowing violation of not more
than $20,000 for each violation; and includes the possibility of imprisonment for not
more than one year for violation of the Act.
My involvement in this issue stretches back several years and is based both on
what I have observed and what informed individuals and experts in my district
have indicated is the current state of affairs. In the spring of 1991, for example,
a television station in my district aired a week-long report concerning marine mam-
mals. This investigating series, "Dolphins: Dying to Please You," documented how
these animals are captured off the coast of Florida and what life awaits them after
capture.
I believe that most people would be surprised to learn that in order to receive a
permit to capture a dolphin, all one really needs to do is apply for a permit with
the National Marine Fisheries Service. The fee for such a permit ranges from $25-
$200 and the requirements on the permit holder are virtually non-existent — all one
really needs is a net and a boat.
Animals are also captured without the supervision of the National Marine Fish-
eries Service or any other of the several regulatory agencies overseeing marine
mammals.
Economics drives the process. It is estimated that the worth of unmarked and
trained dolphins ranges from about $50,000 to about $100,000. Thus, the rewards
are significant while the barriers of entry are low.
We must additionally remember the consequences of our actions. Dolphins in the
wild generally live to be 45 years old, but this dramatically changes once the dol-
phin is in captivity. Often, captive dolphins do not live to half of their normal life
span.
The reason for these deaths is often related to stress. We know that dolphins in
the wild often travel together in families, better known as pods. Once these dolphins
are captured they are thrown into a very different world. Dolphins will be separated
from each other, unable to have the same contact with other members of their spe-
cies.
Many times, dolphins are also placed in small tanks of water. These tanks may
be smaller than a swimming pool you might find in someone's back yard, and the
dolphins are thus severely restricted in comparison to their natural state. This
treatment alone often results in the deaths of these animals.
We must end this cycle and treat dolphins as well as other marine mammals in
an intelligent and humane manner. My Bill seeks to encourage this and I am hope-
ful that the Subcommittee will also act on some of the reforms I have outlined.
In closing, I would again like to express my gratitude to Chairman Studds and
the Committee for giving me the opportunity to address the Subcommittee today.
I would be delighted to work with the members of this Subcommittee — and, in-
deed, the Full Committee — in any way possible to help craft and strengthen the Ma-
rine Mammal Protection Act.
Thank you.
[Statement of Mr. Lipinski follows]:
Statement of Hon. William O. Lipinski, a U.S. Representative from Illinois
Mr. Chairman, I want to thank you for this opportunity to express my concerns
about the reauthorization of the Marine Mammal Protection Act (MMPA).
Last year the National Marine Fisheries Service (NMFS) issued proposed regula-
tions which would change the way public display and scientific research facilities
are regulated. While I applaud their efforts to protect marine mammals, I have
some concerns about these new proposals.
At a time when President Clinton is trying to streamline the Federal Government,
the NMFS proposals apparently create a duplication of jurisdiction and procedures.
If NMFS is concerned with strengthening current regulations, perhaps it could be
better accomplished by helping the Animal and Plant Inspection Service (APHIS)
to reinforce their procedures. It is my understanding that APHIS and NMFS cur-
rently share jurisdiction of display and scientific facilities under an interagency
agreement. A further agreement could avoid the creation of government bureaucracy
and waste.
I am concerned that the display and scientific community, which has played an
invaluable role in educating the public about marine mammals, could become over-
regulated. Perhaps amending the MMPA to create clear jurisdictions would be the
best course of action.
Mr. Chairman, I look forward to the outcome of these proceedings and the intro-
duction of reauthorization legislation.
Mr. Studds. We will hear from our colleague, a distinguished
former member of this Committee, the gentleman from Florida, Mr.
Goss. Welcome.
STATEMENT OF CONGRESSMAN PORTER GOSS, A U.S.
REPRESENTATIVE FROM FLORIDA
Mr. Goss. Thank you, Mr. Chairman. I can say after listening to
the introductory remarks that I am pleased to be back in the room.
I think that the mood of this Committee has always been one of
vision, tempered with a little humor. And I am pleased to see that
it still laughs and I hope it does throughout this hearing.
I would like to ask that my written statement be accepted into
the record and I will try to abbreviate the salient points.
Mr. Studds. Without objection.
Mr. Goss. Thank you very much. The purpose of me being here
really is to ask that you all consider folding into the legislation that
you have before you my Bill H.R. 585, which is mistitled The Ma-
rine Mammal Public Display Reform Act, and that is my
misstatement. It is in fact titled that. It really should be called the
Marine Mammal Capture Reform Act because it goes to the ques-
tion of capture and how we do it, rather than to the question of
display. The whole Free Willy argument, which was eluded to in
opening remarks, is not what this legislation is about.
I want to point out that this is not a new idea that I am going
to explain in a moment. It is one that has been around for a while
and I think it is particularly cogent to the fact that there are dif-
ferences in our resources in this country. In some areas that are
blessed with resources we do a very good job of trying to provide
appropriate stewardship for them. And that is the case with dol-
phins in Florida.
The attractions industry was very alarmed when we first started
talking about this, probably because of the title rather than the
content of our Act. We have tried to alleviate their concerns. I have
got to say that nobody in their right mind would think that Florida
is not attractions-friendly. Florida is perhaps the most attractions-
oriented State in the union. I would certainly say that Florida dol-
phins are swimming all over the world at this point. We know they
have been captured and exported to various exotic foreign destina-
tions, including Baltimore and places like that, but also out of the
country.
We even export mice. We got them from California, but we ran
them through Orlando and now they are trying to export them to
Virginia, I understand. So we are very much in the business of at-
tractions, and I hope that if anyone still has concerns they will lis-
ten closely and read my remarks because we have addressed all of
the areas that they were concerned about.
10
My bill is not Mr. Bilirakis' bill, which seeks to provide protec-
tion for our dolphins. I am a co-sponsor of his bill. However, what
we try and do in my bill is put a recognition on the fact that States
like Florida have taken extra provisions to describe certain speci-
fied areas done on a scientific basis as sanctuaries for certain types
of marine resources. In some cases we call them aquatic preserves.
We also have other labels for other types of water bodies. These are
places where we do not allow normal commercial fishing to go and
we have special rules in order that stocks can be replenished. It is
a very basic simple concept and, frankly, it works quite well if we
allow it to work.
We are asking that States that do this and demonstrate that
they have created these types of special sanctuary areas or reserve
areas, be allowed to do that and protect those areas from other ac-
tivities which might be permitted under a Federal permit granted
by the National Marine Fisheries Service under the marine mam-
mal process.
The concern is: that we would be able to declare all of Florida
off limits and nobody would be able to catch dolphins in Florida
and that would destroy the industry because that is where, in fact,
a great number of dolphins for display are caught. That is not what
this is about and that is not what we are trying to do at all. We
are trying to make sure that there is protection in those areas
where dolphins do congregate, and these are not migratory dol-
phins, these are not the true Atlantic dolphin that swim up and
down the coast, these are the dolphins that basically like it in Flor-
ida and live there and don't leave. They have resettled there as it
were. And they deal in regions. We have regions such as Charlotte
Harbor which many of you have heard me speak about before,
where we found we were taking too many dolphins and depleting
the stock. And wisely the Marine Mammal Service stopped, the Na-
tional Marine Fisheries Service issued a moratorium on captures
while we studied the matter further. And in fact it was their own
study that showed us that we were having a depletion problem.
Interestingly enough, the State of Florida had already created a
series of regulations that said these types of water bodies are very
important to Florida for reestablishing our stocks, and we shouldn't
be allowing commercial taking of all kinds of fish and mammals in
that area; in fact, we need to protect other things including
manatees, a whole other series of issues.
And Florida has been very responsible. To come along with a
Federal law that undercuts that responsibility, in my view is an
error. And that is what my legislation seeks to correct, to allow
States that have done something responsible to continue to do that
responsible thing.
I don't believe there are any injured parties in this legislation.
There are plenty of places to capture dolphins in Florida that are
not in aquatic preserves, more than enough to take care of all the
requirements that are out there right now, I understand.
The situation is actually serious enough in the Gulf Coast area
that there has been a moratorium on dolphin takings, because we
have had an outbreak as we had off New Jersey some years ago,
we don't understand it yet but there is a threat. And wisely there
has been a moratorium.
11
Unfortunately, that moratorium may end in the very near future,
and once again we will not have protection in our aquatic preserves
for the stocks that we are trying to protect.
The tragic story has been that the lack of coordination between
what the State is doing now and what the Federal Government is
doing under its present regulations has caused honorable people
going about their business in a reasonable way, and I cite the Bal-
timore Aquarium as a case of trying to properly get display dol-
phins for the aquarium. To run afoul of Florida laws and get into
a series of bad situations that totally could have been avoided if we
had removed the inconsistencies in these laws. They would have
been able to get their dolphins, there wouldn't have been bad press
and probably the dolphins would have survived because we have a
process of doing a better job of screening and understanding what
we are about and how they are moved about and handled, rather
than the way it did come about where, in fact, one of the dolphins
did die.
So, this legislation that I am proposing for your consideration is
presently a free-standing bill and we are going to pursue it, but I
think this is the appropriate place for it. If you don't, we will pur-
sue it anyway, we hope with your blessing. Because I know of no
negative consequences from proceeding with it.
I thank you, Mr. Chairman. I am of course very available to an-
swer any questions.
[Statement of Mr. Goss follows:]
Statement of Hon. Porter Goss, a U.S. Representative from Florida
Mr. Chairman, I appreciate the opportunity to discuss the issue of marine mam-
mal protection with your Subcommittee today. Specifically, I would like to discuss
"The Marine Mammal Public Display Reform Act," H.R. 585 — a bill that has bi-par-
tisan support, including support from several members of the Merchant Marine and
Fisheries Committee.
Simply put, my bill would allow States to provide additional protection for marine
mammals in specifically designated State waters, and veto permits for marine mam-
mal captures in those waters. By so amending the Marine Mammal Protection Act
(MMPA), we could close a loophole that actually prevents protection for marine
mammals. I believe that it is an unfortunate irony that under the current rules of
the MMPA, States are denied the ability to safeguard specific populations of mam-
mals in their own waters.
In my State of Florida, there are laws on the books which would prohibit the cap-
ture of marine mammals areas known as "aquatic preserves," which are specifically
defined by statute, and have clearly defined borders. These areas have been set
aside because the duly-elected government of Florida has decided that the preserva-
tion of the natural resources within these boundaries is vital to the State's interests.
The Marine Mammal Protection Act, unfortunately, and I believe, inadvertently,
preempts Florida's effort to responsibly protect this element of its natural resources.
Several other States have gone the extra mile to provide protection for their coastal
waters and marine resources — like Florida, these States are also prevented from en-
forcing these measures.
As you are aware, H.R. 585 has come under heavy attack by the public display
industry. I would like to take the opportunity to respond to the industry's concerns,
and allay any fears that this amendment would somehow damage public display in-
stitutions.
The argument most commonly used against State veto power is that it would
upset the MMPA's regulatory regime. Under the MMPA, the National Marine Fish-
eries Service (NMFS) is charged with determining marine mammal populations in
the Nation's coastal waters, and then setting quotas for animal removals in specific
areas. Allowing States to close off certain waters to marine mammal captures would
not prevent NMFS's from carrying out these responsibilities.
12
The display industry contends that dolphins are migratory, and therefore a
"State's rights" amendment to the MMPA is inappropriate. While it's true that At-
lantic dolphins are migratory, pods in the Gulf of Mexico tend to be region-specific.
Another contention is that H.R. 585 would burden interstate commerce. While any
State which attempted to limit dolphin captures to facilities within State boundaries
would violate interstate commerce rules (and any State veto issued under such cir-
cumstances would be invalid), that is not the type of "protection" provided for in this
bill.
Finally, the argument is made that there is no basis for the belief that dolphins
do not do well in public display institutions. In terms of H.R. 585, this is also an
irrelevant argument. States such as Florida have attempted to close off certain
State waters for economic and environmental reasons, not because of any aversion
to public display facilities. In fact, Florida has more public display facilities than
almost any other State!
I am aware that there has been a voluntary moratorium on dolphin captures in
the Gulf of Mexico since 1990. NMFS has asked that this moratorium be adhered
to while it updates its quota system, and while it investigates the so-far unexplained
die-offs that have been occurring among the dolphin populations in the Gulf.
Yet this is no reason to avoid action. This year NMFS extended several capture
permits for Gulf waters. In addition, I am informed by that agency that the vol-
untary moratorium could be lifted as early as this year.
The purpose of the Marine Mammal Protection Act is to protect marine mammals,
and if a State chooses to offer greater protection for dolphins within principals of
the MMPA, it should not be prevented from doing so. H.R. 585, which was originally
drafted with the assistance of the former chief counsel of the Marine Mammal Com-
mission, was drawn to protect dolphins and States' rights within narrow limits.
I urge this Committee to adopt this simple, rational approach to additional ma-
rine mammal protection as it considers the reauthorization of the Marine Mammal
Protection Act.
Mr. Studds. We thank you and we miss your constructive con-
tribution to this Committee and we are glad to have you partly
back. Are there any questions for the gentleman? If not, let me
again, I know that I speak for the staff as well, thank you for your
cooperation and we will do our best to do the right thing.
Mr. Goss. I appreciate that, thank you, Mr. Chairman.
Mr. Studds. Thank you very much. While we bring forward the
remaining seven witnesses as a single panel, let me invite anybody
who needs a seat and can't find one, especially those of you who
have to write, are welcome to sit on this lower tier here and you
can take advantage of the reassembly a moment to do that. Anyone
is welcome to do that.
If all seven of the remaining witnesses could come up as a single
panel, we would appreciate it. I apologize for some of our constric-
tions here. I think the staff has alerted you to our infamous 5-
minute rule. We are going to ask you to confine your oral state-
ments to no more than 5 minutes. Your written testimony will ap-
pear in its entirety in the record. And we will also apply the 5-
minute rule strictly to ourselves in our questioning. If you have not
seen this before, the lights there are somewhat barbaric. The yel-
low light will go on when you have one minute left and when the
red light goes on, you have concluded. We will, in fact, apply that
rule to ourselves as well, so you shouldn't feel bad as a public clam-
or for the Congress to apply all rules to itself. And we intend to
do precisely that.
I would just add that we are under considerable time pressure.
The House is in session, we will probably be interrupted for votes
and we are going to try to move as rapidly as we can.
We will begin with Dr. Nancy Foster, Deputy Assistant Adminis-
trator for Fisheries at NOAA, welcome.
13
STATEMENT OF DR. NANCY FOSTER, DEPUTY ASSISTANT AD-
MINISTRATOR FOR FISHERD3S, NATIONAL OCEANIC AND AT-
MOSPHERIC ADMINISTRATION, DEPARTMENT OF COM-
MERCE
Dr. Foster. Thank you. Good afternoon, Mr. Chairman and
members of the Committee. I am pleased to be here one more time
to testify before this Committee on aspects of the Marine Mammal
Protection Act (MMPA) other than marine mammal interactions
with commercial fisheries.
The MMPA was passed over twenty years ago, we believe with
the objective of offering special protection and humane treatment
to all marine mammals, both in the wild and in captivity.
Some years ago, back around 1988, we became aware of some
problems that we were having in administering our permitting pro-
gram and we began the infamous 5-year review of the permit pro-
gram. The review resulted in some administrative improvements
which we are trying to implement now and in a proposed rule. The
rule was aimed at clarifying and ensuring uniform application of
procedures and requirements.
Today it would seem to us that we face two questions. First, does
the Marine Mammal Protection Act provide its special protection
for captive animals, and if so, is there a duplication of regulatory
responsibility among Federal agencies? Second, what and how
should permitted activities be handled dealing with marine mam-
mals in the wild?
It is our understanding that the public display community be-
lieves that the MMPA's jurisdiction over marine mammals ends
after the animal has been removed from the wild. They also feel,
I think, that there is some duplication of responsibility, particularly
between the Animal and Plant Health Inspection Service (APHIS),
NMFS, and the Fish and Wildlife Service. And they are suggesting
amendments to deal with this.
Needless to say, we disagree with both assertions and in fact we
think that such amendments are unnecessary. We find it kind of
curious that we are here after 20 years of applying Marine Mam-
mal Act protection to captive animals and 20 years of working with
APHIS to discuss these particular questions.
We do believe that the current law applies to animals in cap-
tivity. And we believe that our responsibility and APHIS's respon-
sibility are complementary rather than duplicative, and we think
that is borne out through our MOA.
However, we also agree that since this question has come up it
has to be dealt with, that it is too important to leave for everybody
to interpret on their own. We agree that we should deal with it di-
rectly and we hope to see a clear statement of the intent of Con-
gress. We think that since this is the time when controversy over
public display continues, that it is critical that the regulated com-
munities and the public understand what laws apply to these ani-
mals and what Federal agency has jurisdiction and to what extent.
Now looking into the wild, we have been very concerned with the
growing dissatisfaction among the research community about the
fact that they perceive that the regime under which they operate
is often more burdensome than that which we apply to the inciden-
tal take of marine mammals in commercial fisheries.
14
We agree that the permit requirements today under the MMPA
are too burdensome, lengthy and inflexible when it involves re-
search of the non-intrusive kind involving generally close approach
to marine mammals in the wild. And we believe that the MMPA
should be amended to shorten and simplify the process for research
involving these low level types of harassment.
We also believe that there should be a provision made for yet an-
other kind of permit; the kind of permit that would allow the public
to observe these animals in the wild and would allow them to pho-
tograph and bring the films and photographs back to those who
will never have the opportunity to see these animals in their natu-
ral habitats.
We think that the way it is now, we find ourselves forcing these
activities under research permits. And that is simply not workable.
We also believe that the law should be amended to allow the im-
port and export of native art for purposes of exhibit in museums
or any other institution with public access and also for other pur-
poses involving cultural exchanges.
We have a few other suggestions but these are all included in my
testimony, which I will submit for the record, and I will be glad to
answer any questions. The green light is still on.
[Statement of Dr. Foster can be found at the end of the hearing.]
Mr. Studds. There is absolutely no precedent for that whatso-
ever. We don't know how to proceed. Thank you very much. Ms.
Mollie Beattie, the new Director of the Fish and Wildlife Service.
I think this is your first visit officially with us. We are delighted
to have you.
STATEMENT OF MOLLIE BEATTIE, DIRECTOR, U.S. FISH AND
WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR
Ms. Beattie. Thank you very much, Mr. Chairman. It is a de-
light to be here and to have this be my first testimony on such an
important issue and one in which the Fish and Wildlife Service is
deeply interested.
In addition to an overview of the activities of the U.S. Fish and
Wildlife Service, my statement, of which a longer version has been
submitted for the record, provides information on the status of ma-
rine mammals under our jurisdiction and proposals we are consid-
ering for amending the Act.
The Act establishes a Federal responsibility for the conservation
of marine mammals. Under the Act, the Secretary of the Interior,
through the Service, is responsible for protecting and managing
polar bears, sea and marine otters, walruses, manatees and
dugong.
In conducting these activities, the Service maintains a coopera-
tive working relationship with the Marine Mammal Commission
and its committee of scientific advisors, the National Marine Fish-
eries Service, the newly created National Biological Survey, the Bu-
reau of Indian Affairs, and other Federal agencies. We also cooper-
ate with affected States, Alaska native organizations, conservation
organizations, and other entities on marine mammal issues of mu-
tual concern.
All three species of manatees, the dugong, the marine otter and
the southern or California sea otter are listed as endangered or
15
threatened under the Endangered Species Act and, therefore, are
considered depleted under the Marine Mammal Protection act. Ma-
rine mammal species under service jurisdiction in Alaska are con-
sidered to be non-depleted and populations are currently believed
to be healthy.
The Pacific walrus, a population shared with Russia, had an esti-
mated minimum population of 201,000 in 1990 based on a joint
Russia-U.S. population survey. Although this estimate is less than
the estimate of 232,000 animals derived from the 1985 survey,
anomalous ice conditions prevailed during the 1990 survey and
comparing the two estimates is, at best, a tenuous proposition. The
Service believes that the Pacific walrus population is at or near
historic high levels and is stable or slightly decreasing.
The polar bear population in Alaska is shared with both Canada
and Russia and is believed to number about 5,000 animals. The
northern, or Beaufort Sea, population is estimated to be 1,800 ani-
mals. The western, or Bering-Chukchi Sea, population is believed
to number about 3,200 animals. The Service considers polar bear
stocks in Alaska to be healthy and possibly increasing slightly.
A growing population of sea otters in Alaska estimated to num-
ber between 100,000 and 150,000 has become reestablished in most
of the species' historic range and is considered by the Service to be
healthy. Although the population as a whole is healthy, specific
subpopulations within the State are of concern. The south-central
Alaska sea otter population is in a recovery phase from acute mor-
tality following the Exxon Valdez oil spill of 1989, and long-term
sublethal effects on the population are not well understood. In
southeast Alaska, harvest numbers have increased dramatically
and there is concern that the population level may be affected.
Although the Service believes that population levels of these
three Alaska marine mammals are sound, we are considering pro-
posals addressing issues necessary to ensure their long-term viabil-
ity. These proposals include the following, that will be discussed in
the order they appear in the Act.
Whether the Act's language is precise enough to allow specific
protection of marine mammal habitats has been questioned.
In section 2(7) of the Act, Congress found that marine mammal
management should "maintain the health and stability of the ma-
rine ecosystem." While single-species-oriented initiatives have
achieved some important success under the Act, greater emphasis
must be placed on understanding and managing the complex fac-
tors that govern the health and stability of the marine environ-
ment.
By adopting an anticipatory, ecosystem-based approach to man-
aging marine mammals and their habitat, it should be possible to
protect living marine resources, avoid legal restrictions that could
hinder resource use and development activities that impact pro-
tected species, and advance the Act's primary goal of marine eco-
system health and stability.
To ensure the authority to develop regulations to protect specific
threatened or vulnerable habitats, we are considering recommend-
ing amendments to sections 2 and 3 to include and broaden habitat
protection provisions. The habitat protection provision of the 1973
16
International Agreement on the Conservation of Polar Bears may
also need to be specifically addressed.
The Service is concerned with the clarity of definitions in section
3. For example, the Act is ambiguous about what constitutes an au-
thentic native handicraft, and the lack of specificity hinders man-
agement activities such as providing sound legal advice to native
hunters.
The term edible portion is not currently defined, and that has led
to the sale of gall bladders and male reproductive organs as
aphrodisiacs or for other purposes. The increased sale and inter-
state transportation of these items could affect the harvests of cer-
tain species, such as polar bears.
We are also reviewing ways to enhance the management provi-
sions of section 101(b) by authorizing the Secretary to initiate the
development of harvest restrictions when the population of a spe-
cies declines to 10 percent above the depletion level.
The actual implementation of those restrictions would not occur
until the species is at the level of depletion. We are considering a
process that would maintain the integrity of the native subsistence
exemption while ensuring that a critical regulatory program would
be in place at the point of depletion and not years later.
This proactive approach would ensure that marine mammals
continue to provide subsistence benefits to future generations of
Alaska natives without imposing unnecessary restrictions on these
benefits.
We emphasize our support of a native exemption, resist any at-
tempt to weaken it, and restore our pledge to work with Alaska na-
tives should we find ourselves in a depletion situation. Thank you,
Mr. Chairman.
[Statement of Ms. Beattie can be found at the end of the hear-
ing.]
Mr. Studds. Thank you. Let me just reassure members who are
wondering about those bells. Six bells is either a recess or an air
raid and we have ascertained it was the former. We are back in
session. Dr. John Reynolds, Chairman of the Marine Mammal
Commission. Dr. Reynolds.
STATEMENT OF DR. JOHN E. REYNOLDS, CHAIRMAN, MARINE
MAMMAL COMMISSION
Dr. Reynolds. Thank you, Mr. Chairman. It is a pleasure to ad-
dress you and the Committee this morning.
The written statement that I have provided you is long and com-
prehensive and at this point I would just like to summarize certain
important points that we made in it.
Over the past several years many scientists, including members
of the Commission and its Committee of Scientific Advisors, have
expressed concerns regarding the permitting process. In response
to the intensity of these concerns, the Commission convened two
workshops in 1993 to discuss the perceived problems and to iden-
tify possible solutions.
Seven major problem areas are identified and noted in my writ-
ten testimony.
In my written statement I also suggest several steps that Con-
gress might take to address these problems including the following:
17
encourage the National Marine Fisheries Service and the Fish and
Wildlife Service to develop clear, concise instructions for preparing
permit applications; direct the Services to advise applicants within
30 days of receiving an application if it is complete or not, and fin-
ish reviews within 60 days of an application's being judged com-
plete; authorize the Services to exempt certain categories of re-
search from the notice and comment requirement and perhaps
other requirements related to permit review; streamline procedures
for authorizing the importation of specimens for scientific purposes;
clarify in report language that the term bona fide refers to an ap-
plication made in good faith without fraud or deceit, an application
made with earnest intent, and one for which the scientific purpose
is neither specious nor counterfeit; amend the Act to enable the
Secretaries to authorize the taking of marine mammals including
depleted species, incidental to filming for either educational or com-
mercial purposes under certain conditions when harassment might
occur; and authorize the Secretaries to waive the 30-day public no-
tice and comment period when delaying research could result in
harm to a species, population, or individual marine mammal, or re-
sult in loss of unique, unforeseen research opportunities.
Other problems with the scientific research program identified by
the participants can be addressed administratively, we think.
The Commission is opposed to the needless use of invasive and
lethal research techniques, but believes that there are instances
when lethal or invasive research is necessary and appropriate to
further basic knowledge.
We also note that existing statutory provisions ensure that such
techniques will not be used when nonlethal or less invasive meth-
ods are practicable.
In my written statement, I address at length the question of
which agency or agencies should be given jurisdiction over captive
marine mammals. The Commission believes that split jurisdiction
works. While the Animal and Plant Health Inspection Service has
experience with captive animals under the Animal Welfare Act,
and can inspect facilities, it does not have the expertise with re-
spect to marine mammal biology, physiology, behavior, and specific
marine mammal needs that the National Marine Fisheries Service
and the Fish and Wildlife Service have.
The responsibilities of the three agencies are largely complemen-
tary. Since the Interagency Agreement in place since 1979 works
and there is little duplication of effort under the Animal Welfare
Act and the Marine Mammal Protection Act, we recommend that
Congress clarify that the jurisdiction over captive marine mammals
is intended to be provided under both Acts.
My written statement also provides comments on other permit-
related amendments proposed for consideration during reauthoriza-
tion. These include the use of marine mammals in interactive dis-
plays, the importation of depleted marine mammals for public dis-
play, the applicability of the National Environmental Policy Act to
the capture of wild marine mammals for the purpose of public dis-
play, and the prohibition against feeding wild marine mammals.
My written statement also discusses issues of interest to Alaskan
native groups who seek to ensure 1) that the current exemption al-
lowing the taking of marine mammals for subsistence and handi-
18
craft purposes is maintained; 2) that cooperative efforts are en-
hanced between the Alaskan natives and the Fish and Wildlife
Service in managing polar bear, sea otter and walrus populations;
and 3) that the restrictions regarding importation of personal items
made from marine mammal parts be relaxed.
The Commission supports retention of the existing exemption for
Alaskan natives. As was recognized by Congress when the Act was
passed in 1972, traditional uses of marine mammals by Alaskan
natives should be protected and given primacy over other uses.
The Commission shares the belief that cooperative efforts be-
tween appropriate government agencies and native groups provide
the best long-term solution for managing the take of marine mam-
mals so as to not adversely affect marine mammal populations
while meeting subsistence requirements.
The Commission further believes that the Act now provides au-
thority to the Fish and Wildlife Service to grant financial assist-
ance to Alaskan natives participating in cooperative management
activity, but that it might be useful to note this in report language
so as to help ensure that moneys are available.
The amendment to authorize importation of certain marine mam-
mal items would likely have little effect on marine mammal popu-
lations but would have important benefits to Alaskan natives by
fostering relations among circumpolar natives. With a few minor
modifications, enactment of such an amendment is supported by
the Commission.
Thank you for inviting me to speak to you today.
[Statement of Dr. Reynolds can be found at the end of the hear-
ing.]
Mr. Studds. Thank you very much, sir. Next, Mr. Robert Jenkins
of the American Zoo and Aquarium Association. Mr. Jenkins.
STATEMENT OF ROBERT JENKINS, AMERICAN ZOO AND
AQUARIUM ASSOCIATION, ALLIANCE FOR MARINE MAMMAL
PARTIES AND AQUARIUMS
Mr. Jenkins. Good morning. Mr. Chairman and members of the
Committee, I am Robert Jenkins, Executive Officer for Environ-
mental Affairs at the National Aquarium in Baltimore.
Today I am representing the 31 members of the Alliance of Ma-
rine Mammal Parks and Aquariums and the 162 accredited institu-
tional members of the American Zoo and Aquarium Association.
The Alliance and the AZA strongly support the Marine Mammal
Protection Act. The MMPA was enacted to protect declining popu-
lations of marine mammals. To increase awareness and generate
support, Congress looked to zoos and aquariums to educate the
public about these magnificent animals. It is understood that pub-
lic display facilities reached millions of Americans every year with
effective education and conservation messages.
Today, more than 115 million people visit our facilities each year.
In addition to learning the basics of marine mammal biology and
natural history, visitors to our facilities leave with a new aware-
ness that the health of the natural world and human behavior are
closely intertwined.
In addition to the displays and information that are presented to
all visitors, our facilities reach out to our communities with spe-
19
cially designed, in-depth programs that enhance classroom science.
Over 8 million children visit our facilities each year; and another
2 million participate in outreach programs. Many State educational
guidelines encourage teachers to use our facilities as community
science resources. There are simply no other programs available
that can compare to the education opportunities we offer.
In addition to our role as public educators, we have spent over
$20 million on scientific research alone in the last 5 years. We have
published over 1600 research studies reporting our breakthroughs
in animal health, behavior, physiology, blood chemistry, animal
communication and reproduction. Those efforts have led to incred-
ible advances in our veterinary care, husbandry training practices
and behavioral and social enrichment programs.
Today, nearly 40 percent of the marine mammals in our facilities
have been born and raised there, a result of the extraordinary care
given by our veterinarians and marine mammal biologists who
have devoted their lives to the well-being of these animals.
Further applying our knowledge, we regularly volunteer time
and resources to help rescue, rehabilitate, and hopefully, release
the marine mammals who strand on our beaches. This has resulted
in the return of over 1500 live marine mammals back to the wild
in the last 5 years alone, more than we currently have in our col-
lections.
Our institutions have enormous expertise and knowledge that is
recognized and sought after around the world. Our experts helped
in the Valdez oil spill. We have been consulted by China in their
work on the Baiji River dolphin now close to extinction. And, at the
request of NMFS, we have applied our knowledge in a study on the
health of dolphins in the Gulf of Mexico, to name but a few exam-
ples.
The American public knows what we do and they support it. Ac-
cording to a recent independent Roper Poll, a nearly unanimous 92
percent recognized the important role we play in educating our
visitors about marine mammal conservation. An impressive 86 per-
cent stated that they are more likely to be committed to conserva-
tion after visiting our facilities, just as the drafters of the MMPA
knew they would.
Mr. Chairman, the MMPA is an important law, sufficient in
scope and authority. We fully support is reauthorization. As the
Congress considers adjustments to the Act, we urge you to reaffirm
the important role modern zoos and aquariums play in achieving
the goals of the Act.
We would also like to see simple language added that would
reenforce the Act's original intent and clarify the confusion over
agency jurisdiction which has diverted time and resources away
from our programs and our animals.
The proposed permit regulations recently published by NMFS
serve as a case in point. If adopted, exemplary facilities like those
in the Alliance and the AZA would face burdensome and confusing
requirements. These regulations would duplicate and perhaps con-
flict with standards already set by the Animal and Plant Health
Inspection Service. Such duplication would be cumbersome and, in
the end, would not provide any real benefit to marine mammal wel-
fare or conservation.
20
In an era of Federal deficits and efforts to streamline government
bureaucracy it does not seem wise to have several agencies regulat-
ing the same thing.
Mr. Chairman, since 1972, the public display community has an-
swered the call to help conserve marine mammals. We ask that you
support the invaluable work we do and help us ensure that present
and future generations of Americans have the opportunity to learn
about the importance of marine mammal conservation.
Our specific legislative recommendations are found in my written
testimony. To assist the Subcommittee in these deliberations, I
have asked a panel of experts to be with me here today and I can
introduce them at the appropriate time. I thank you for the oppor-
tunity to comment.
[Statement of Mr. Jenkins can be found at the end of the hear-
ing.]
Mr. Studds. Thank you very much, sir. Let me just observe
those two bells are a vote on the floor. It is my intention to adjourn
for only as long as it takes me to get across the street and back,
which I would guess is about seven and one-half minutes. So, we
will stand at adjournment just for that amount of time. Thank you.
We apologize for the delay.
[Recess.]
Mr. Studds. We apologize for the first of several inevitable inter-
ruptions and we will resume with Dr. John Grandy of the Humane
Society. Dr. Grandy.
STATEMENT OF JOHN GRANDY, VICE PRESIDENT FOR WILD-
LIFE AND HABITAT PROTECTION, HUMANE SOCIETY OF THE
UNITED STATES
Mr. Grandy. Good morning, sir. I am Dr. John Grandy, vice
president for Wildlife and Habitat Protection with The Humane So-
ciety of the United States and Humane Society International.
I thank you, Mr. Chairman, for the opportunity to testify today
on behalf of The Humane Society of the United States and fourteen
other member organizations of the Marine Mammal Protection Co-
alition and our combined membership and constituency of over 3
million persons worldwide.
Public opinion concerning marine mammals in captivity has been
changing. Documentaries, research on free living animals, wildlife
photography and films, such as "Free Willy" as you mentioned,
have established a new public awareness of the complex nature of
these animals.
The hundreds of thousands of calls made to the 800 number at
the end of Free Willy, as well as the proliferation of aquaria with-
out live marine mammal exhibits, the closing of seasonal dolphin
shows at amusement parks, and State legislation prohibiting public
display, illustrate that the debate on public display is entering a
new era.
My comments are detailed in my testimony and I will summarize
them at this time. First, we believe the Marine Mammal Protection
Act should be amended to clarify the jurisdiction between APHIS
and the National Marine Fisheries Service. We certainly agree with
Dr. Nancy Foster that this needs to be done and it needs to be done
now.
21
Our organizations believe strongly that the National Marine
Fisheries Service has primary responsibility for the care and main-
tenance of marine mammals in captivity. It is vital that primary
oversight of marine mammals continues to rest with NMFS, not
APHIS. APHIS has been persistently reluctant to modify certain
requirements for marine mammals because such requirements
could then apply to all captive animal species. APHIS simply has
too broad a mandate to have primary oversight of captive marine
mammals which have very specialized species-specific require-
ments.
Most importantly, however, we must clarify that the Marine
Mammal Protection Act clearly grants NMFS statutory authority
over all marine mammals, regardless of the environment they in-
habit. As NMFS has maintained, and we concur, captivity is a form
of take and NMFS has jurisdiction over marine mammal takes.
Second, the Marine Mammal Protection Act should be amended
to prohibit the capture from the wild of marine mammals for public
display as well as their import and export. Public display can be
a tool for education and conservation without capturing healthy in-
dividuals from intact social groups in the wild.
Public display facilities can use captive-bred and unreleasable
stranded animals for their exhibits when this is appropriate.
Furthermore, we now have a better understanding of marine
mammal species in the wild. We know that many exhibit long-term
familial bonds and in general are socially complex, long-lived and
mentally sophisticated creatures. Wild cetaceans may travel up to
50 to 100 miles a day, dive several hundred feet deep, and spend
only 20 percent of their time at the surface of the water. The tran-
sition from their natural environment to captivity in a small con-
crete tank can only be unimaginably traumatic.
The capture process itself, where animals are rounded up, netted,
lassoed, or driven into shallow water and separated from their com-
panions is incredibly cruel and stressful.
The public has received the message of conservation and habitat
protection. We urge the Congress to maintain and support that.
Third, the Marine Mammal Protection Act should be amended to
prohibit all forms of direct contact between the public and marine
mammals. We believe that petting pools, feeding programs, and
swim-with-the-dolphin programs do not constitute legitimate forms
of public display under the Act.
We believe there is a strong potential for tragedy in these forced
interactions and we oppose them.
Fourth, the MMPA should be amended to prohibit the intentional
feeding of marine mammals in the wild. We strongly supported
NMFS when it issued regulations banning this disruptive practice.
Feeding wild marine mammals may habituate them to the ap-
proach of boats which could result in injury and may cause disrup-
tion of natural foraging patterns and result in introduction of
pathogens and parasites.
Fifth, the Marine Mammal Protection Act should require that the
disposition of stranded marine mammals be strictly regulated. The
Marine Mammal Protection Act is unclear about the disposition of
stranded animals and this should be clarified.
22
Sixth, the Marine Mammal Protection Act should be amended to
prohibit invasive and lethal research on marine mammals unless
it will directly benefit the species in the wild. We believe that the
killing of healthy marine mammals in scientific studies and
invasive experiments are justified only under a limited set of cir-
cumstances and when no alternative exists.
We again direct the Committee to the Bilirakis bill which con-
tains language addressing this issue.
In conclusion, Mr. Chairman, I want to support Fish and Wildlife
Director Mollie Beattie and express our support for an amendment
which would strongly support habitat preservation.
And last, I would like to bring to the Committee's attention a
publication which we have put out entitled "Small Whale Species,
the Case Against Captivity." We will make that available to you,
Mr. Chairman for the record and to the other members. Thank you.
[Statement of Dr. Grandy can be found at the end of the hear-
ing.]
Mr. Studds. Thank you very much, sir. Mr. Pungowiyi and Dr.
Tyack, at the request of Congressman Young's staff— they are try-
ing to locate him, which should not be hard, he is quite large — we
are going to reverse the order of the last two witnesses if that is
OK, so that he might have a chance to get back to hear his con-
stituent from Alaska. And we will now go to my constituent, Dr.
Peter Tyack, from the Woods Hole Oceanographic Institution. Dr.
Tyack.
STATEMENT OF DR. PETER TYACK, RESEARCH ASSOCIATE,
WOODS HOLE OCEANOGRAPHIC INSTITUTION
Dr. Tyack. Mr. Chairman and members of the Committee, I
would like to both thank you and the snowplows of Logan Airport
for this opportunity to appear before you this morning.
My name is Peter Tyack and I am a biologist on the scientific
staff at the Woods Hole Oceanographic Institution, a private non-
profit institution for research and education in oceanography.
For the past two decades, I have studied the acoustic communica-
tion and social behavior of whales and dolphins. Conservation biol-
ogy is not my profession, but I hope that I can contribute an inde-
pendent scientific perspective.
Marine mammal populations in U.S. waters are primarily threat-
ened by unintentional effects of human activities. Overfishing may
deplete marine mammal prey enough to reduce the carrying capac-
ity of the environment. Chemical and noise pollution degrade the
quality of marine mammal habitats. Ships and fishing gear kill or
injure marine mammals by accident. Ironically, NMFS has imposed
tougher controls on scientists working to benefit these animals
than on these more important problems.
This regulatory focus on scientific research is completely out of
balance with the relative risk these activities pose to marine mam-
mals.
Let me give an example from the most endangered baleen whale,
the northern right whale. Most of the 300 or so right whales left
in the western North Atlantic carry scars from vessel collision or
entanglement with fishing gear, and more adults die from vessel
collision and net entanglement than any other known causes.
23
Under current regulations, there are no preventive controls on
ships or fishing gear most likely to kill or injure the last remaining
right whales. In contrast, more and more controls are being placed
on the scientists who document these problems.
A group of biologists on Cape Cod risk their own lives to save en-
tangled whales. Since they approach whales closely, NMFS re-
quired them to obtain permission to take these whales by harass-
ment. The permit took a year to be issued.
If the scientists had not continued to rescue whales illegally dur-
ing this year, whales might have died from the lethal combination
of lax regulation of fisheries combined with over-regulation of the
rescues.
How did this policy go so wrong? The Marine Mammal Protection
Act of 1972 banned any taking of marine mammals. For commer-
cial fisheries, take is usually construed as killing or injuring. How-
ever, when a scientist asks for a research permit, take has been de-
fined to include minor behavioral reactions of negligible impact.
NMFS devotes a significant fraction of its regulatory effort track-
ing these research permits, treating people who photograph an ani-
mal with similar rules as those who shoot one.
Another example may illuminate the problems of this double
standard. Extensive research shows that whales are disturbed by
loud ships when they are many miles away. These results suggest
that under current regulations, each ship takes thousands of ma-
rine mammals a year by harassment. If commercial ships operated
under the same rules as research, they could seldom leave the har-
bor.
There is a critical need to redefine "take" in the Marine Mammal
Protection Act in a way that focuses effort based upon magnitude
of risk to animal populations. I support separating takes into three
different risk categories, one involving predictable death or injury,
a second involving potential harm, and a third involving negligible
impact.
Given the past regulatory history, it may be important to require
regulators to control the most dangerous takes before committing
resources to insignificant ones.
The purpose of permits for scientific research under the MMPA
was to allow scientific activities that would otherwise be prohib-
ited. The current permit process for scientific research is not inap-
propriate for the rare requests for lethal or injurious research.
However, I do not support requiring permits for research activities
that have negligible impact.
The Marine Mammal Protection Act should be amended to allow
a general authorization for these research activities.
It is less clear how to regulate research activities with an un-
known potential to harm or harass animals. And I would have to
emphasize that we have profound ignorance of some of these im-
pacts now. However, I do not believe that regulating individual acts
of non-injurious takes is appropriate.
The impact of harassment and disturbance on populations de-
pends upon cumulative impacts which are a form of habitat deg-
radation. I believe they are better regulated as habitat manage-
ment problems than by attempting to regulate individual acts.
24
Marine mammal protection will be better served by redirecting
resources from extensive permitting of trivial research takes to
stock assessment and conservation plans with some enforcement
power.
The Marine Mammal Protection Act must be updated from regu-
lating the lethal takes of the whaling era to an era where a broad
array of unintentional impacts threaten marine mammals and the
ecosystems upon which they depend. Thank you.
[Statement of Dr. Peter Tyack can be found at the end of the
hearing.]
Mr. Studds. Thank you very much. Needless to say, Dr. Foster,
we are shocked. Shocked. I assume — I have to assume — it is law-
yers in your midst that are responsible for this activity. I, myself,
have spoken personally with the whales referred to by Dr. Tyack,
and they are in full concurrence. And as a matter of fact, they have
suggested we put the lawyers out there to examine who is
harassing whom. Anyway, the purpose of our switch has occurred
and it is a pleasure now to recognize Mr. Caleb Pungowiyi, Presi-
dent of the Inuit Circumpolar Conference. Mr. Pungowiyi.
STATEMENT OF CALEB PUNGOWIYI, PRESIDENT, INUIT
CIRCUMPOLAR CONFERENCE
Mr. Pungowiyi. Thank you, Mr. Chairman and members of the
Committee and ladies and gentlemen. My name is Caleb
Pungowiyi. I am president of the Inuit Circumpolar Conference, an
international organization representing the Inuits of Canada and
Greenland, Alaska and Russia.
My testimony today is on behalf of Alaska natives and our broth-
ers in Russia, Canada and Greenland. The encroachment of civili-
zation has not been kind to our people. From the days of the Rus-
sian fur trade, the Yankee whalers and the Gold Rush days, we
have suffered tremendous social injustices and hardship. Many of
our people have died from starvation, mistreatment and diseases.
My mother's family were the sole survivors from the village of
350 people who died of mass starvation. It occurred on St. Law-
rence Island in the late 1880's. I remember my grandmother telling
us of leaving the bodies where they lay because they were too weak
to give them proper burial, and the reason I bring this up is be-
cause the exploitation of resources and the hardship it caused our
people is just in recent history.
Arid we have no intention of seeing the marine mammals deci-
mated in a way that it hurts our people. Like the Canadian people,
we have managed our resources and our use of marine mammals
through our own cultural rules. And these rules have been success-
ful for hundreds of years. And we continue to abide by them today.
I believe that the exemption in the Marine Mammal Act is the
Congress's recognition of the strength and value of native cultural
management of marine mammals.
Since the enactment of the Marine Mammal Act, we have made
the protection of the native exemption our priority. The exemption
is not without its fault and there is probably no other law or policy
in the modern world that restricts the economic activity of a group
of people to handmade items and also restricts the sale of products
only to its own people.
25
It is as if our people live in the fishbowl and every action we take
is watched by the world community and every mistake made by our
members is magnified beyond its proportion.
The suggestion made to you today by the Fish and Wildlife Serv-
ice is an example of why we feel that way. The native exemption
has worked well but Fish and Wildlife does not seem to understand
that.
We have come to you today with what we see as practically un-
necessary and unacceptable changes to the native exemption.
There is no problem in the definition of handicraft and we cur-
rently have full legal authority to interpret the undefined terms of
the statutes.
The mention of sales of gallbladders and male organs is some-
thing that they have not communicated to us as a concern and if
they are aware of illegal sales, then Fish and Wildlife should en-
force the ban of these sales, rather than bring it to the public as
a problem.
There are currently a number of excellent vehicles for working
within the native community. These commissions were formed for
the purpose of protecting the uses of marine mammals. The empha-
sis was to respond to situations that threaten our subsistence life-
style and to show that we are genuinely concerned about the con-
servation of marine mammals.
In 1977, the Alaska Eskimo Whaling Commission was formed in
response to an international effort to ban the subsistence harvest
of bowhead whales. The Alaska Eskimo Whaling Commission is
now seen as an example of the native community's ability to orga-
nize for species management, conduct and develop scientific re-
search, and implement self-management.
The Eskimo Walrus Commission was formed in 1978 in response
to the State of Alaska's efforts to manage walrus. It is in these and
other efforts that we have consistently made efforts to assist the
agencies to improve the knowledge of the species, to monitor the
native take, and to avoid waste.
I believe that the cooperation with native communities is nec-
essary to ensure the conservation of marine mammals. It is only
if the Alaskan natives have a stake in research regulation and en-
forcement that the management action can be effective.
It is our experience with the U.S. Fish and Wildlife Service, how-
ever, that cooperation is more an exception than the rule. The sug-
gestions made by the Director today were never discussed with the
native community before.
Again, the key is cooperation and the best model of that is co-
management, where there is a genuine sharing of power and re-
sponsibility over all forms of management.
The service — excuse me — am I out of time?
Mr. Studds. We have a certain degree of flexibility when dealing
with people from southeastern Massachusetts and Alaska. We un-
derstand that you have traveled a very great distance and of course
Dr. Tyack has traveled an equal distance when you talk about vir-
tual distance, so please take an extra couple of minutes.
Mr. Pungowiyi. Thank you, sir. The Service has made some
great strides in this direction with respect to migratory birds. The
26
government should follow suit with respect to marine mammals as
well.
Therefore, we request amendments in the Marine Mammal Pro-
tection Act to give us the vehicles for co-management in research
regulation, monitoring and enforcement.
Two of the points I would like to make about the Marine Mam-
mal Protection Act with respect to native use of marine mammals.
First, I urge the Congress not to depart from the current tools for
measuring the health of the species.
I am particularly concerned with the language in the latest
House draft which would create a new category of "critical". And
would set allowable levels of take through the enactment of so-
called PBR, potential biological removals. The Alaskan native com-
munity feels that these are not necessary to resolve the issue of il-
legal take of marine mammals by commercial fisherman.
While strictly speaking this is not an issue of this hearing, we
feel strongly enough that I should mention it. The second point I
would like to make concerns the importation of marine mammal
parts into the United States. At the present time, if I take a parka
to Canada with the polar bear ruff, I cannot bring it back home.
My cousins (by the way I have relatives in Russia), cannot wear
their sealskin boots when they come over to visit me.
I thank the Committee for the draft bill that properly fixes this
situation. I would like to request further that the law allow impor-
tation of native handicrafts by tourists who travel into Russia,
Greenland and Canada. Such importation would be allowed only if
the other country of visit has a protective law like MMPA in place
and be consistent with section 11(b) of the Marine Mammal Protec-
tion Act.
Alaskan natives and the natives in those other countries have
few sources of income and the sale of handicrafts is as important
to them as it is to us.
As I said when I started, the threat of survival of the marine
mammals does not and will not come from the native community.
It will come from those activities and actions of the industrialized
world. There is currently clear evidence of accumulation of heavy
metals, PCB's, DDT, and other organic compounds in the organs
and fat tissues of marine mammals.
The native people are probably the only people in the world
where the health authorities and research scientists have rec-
ommended the continued consumption of contaminated food be-
cause there are little or no other alternatives. The industrialized
world is not ready to reduce its emission of pollutants into the en-
vironment. And we would ask that Congress direct the public
health and Federal agencies to investigate the levels of contamina-
tion and the risk to human health.
I appreciate this opportunity to testify. I would be happy to an-
swer any questions. Thank you.
[Statement of Mr. Pungowiyi can be found at the end of the hear-
ing.]
Mr. Studds. Thank you very much, sir. Now, as I have said, we
are going to apply the five-minUte rule to ourselves as well. Dr.
Tyack, now that we have resolved the problem of the harassment
of scientists, at least I think we have, I would like to hear a little
27
bit more about your observations on the cumulative impacts of
habitat degradation on marine mammals. As you know, in our own
State we are dealing with this issue right now as we look at how
to monitor the potential cumulative effects of disposal of dredge
materials and discharge of sewage effluent into what are very vital
feeding grounds for endangered whales. You seem to indicate that
we should go beyond the normal pollution issues and perhaps even
beyond our new program which we are going to call swim-with-the-
lawyers, I think. What should we be thinking about here?
Dr. Tyack. I do think it demands a new way of thinking. Most
of the enforcement of the Marine Mammal Protection Act has ex-
clusively concerned individual takes of animals. There has been re-
markably little thought put toward the combined effects of all
human activities on these animals. And that is going to take a re-
orientation of effort.
Unfortunately, for chemical and noise pollution, we have such
profound ignorance, I don't think that it is possible to make good
regulatory decisions. The Office of Naval Resource has launched an
ambitious new program to look at the impact of noise on these ani-
mals. That has not received much public attention but is one of po-
tential concern.
Chemical pollution requires an equally concerted effort on the
part of some Federal agency to bring us answers so that it will be
possible to make cost and benefit decisions. Right now we simply
can't say what the impacts to marine mammals are of these heavy
toxic loads that Mr. Pungowiyi just talked about.
I think that there are, however, several different issues that are
much more obvious. The constant threat of vessel collision is obvi-
ously dangerous to animals, and the primary need here is simply
enforcement of existing laws. For right whales in the southern Gulf
of Maine, one of the primary issues to their survival, one of the pri-
mary habitat degradation issues, is this presence of vessels which
collide with them and kill so many individuals. This problem has
not been addressed by the National Marine Fisheries Service.
Just as important as vessel collision, are the potential effects of
overfishing of marine mammal prey in reducing the carrying capac-
ity of the habitat. I think protection against this kind of risk would
require allocating quotas of food for marine mammals when fishing
quotas are allocated. This will not be an easy task. But I think that
if Congress is serious about enhancing the recovery of marine
mammals, it would do better to decrease the effort on trying to reg-
ulate every individual take of an animal, even if it is trivial, and
pay much more attention to targeting the most serious problems
facing each marine mammal population. For each particular popu-
lation I don't think that it is an impossible task even now to assess
which of the following problems are of primary concern: chemical
pollution, overfishing, entanglement in fishing gear, vessel colli-
sion, or noise pollution. What is required is a process that demands
weighing all these impacts.
Mr. Studds. I don't suppose I should ask you about the impact
of an eighteen and a half foot vessel commanded by a member of
this Committee, so I won't. Thank you very much. I hope the air-
port reopens sometime this fiscal year. The gentleman from New
Jersey.
28
Mr. Saxton. Thank you, Mr. Chairman. I apologize for having
been out of the room much of the time that you all were giving
your testimony, but in my opening statement I raised some ques-
tions and I would just like to ask this question of whoever might
want to respond. I suspect that Dr. Foster or Ms. Beattie would
like to respond to these questions. The question has to do with the
regulations that were proposed last October that had to do with the
subject of a $10,000 surety bond or whatever other arrangements
one might make with regard to each animal in the care of a facil-
ity. It has to do with seemingly extensive review and intricate per-
mit applications that many people see as unnecessary and over-
reaching, and it has to do with the industry requirement to pay for
the government's writing of environmental assessments and envi-
ronmental impact statements. So I guess I have basically three
questions. Why are these regulations necessary? In other words,
justify them. Why are they not overreaching? And how are we
going to pay for them?
Dr. Foster. I think I win the lottery this time. Those are the Na-
tional Marine Fisheries Service's proposed rules. Let us start with
the idea of the surety bond. First of all I should say that we are
not bound and determined and wedded to a $10,000 surety bond.
What we are trying to get at is a problem that we have faced in
two serious situations, at least, in the past few years and we see
this as having the potential to happen more often in the future.
And that is when a facility for one reason or another closes or goes
bankrupt, what happens to the animals in that facility? Because
we grant the permit to hold these animals, the public holds us ac-
countable for what happens to these animals. And in point of fact,
this is a classic example of one of the differences between the Ani-
mal Welfare Act and the MMPA.
When a facility loses a license, then APHIS responsibility goes
away. And so without the MMPA there would be no care for these
animals. What we see as a real problem is that we can't think of
any good reason why the public taxpayer should have to pay for the
care and transport of these animals while we are working with the
public display community to find a place for them.
Our proposal is a way of ensuring that really marginal facilities
find it more difficult to get the animals but even more important
than that, that there is some funding to take care of them when
some facilities fail. We have imposed on friends in the public dis-
play community; we have imposed on the Marine Mammal Center
in California at their own expense to take these animals. The New
England Aquarium incurred a tremendous expense taking animals
from a facility that went down.
And that is the rationale behind the idea of the surety bond.
Mr. Saxton. May I beg your indulgence to interrupt you just so
that I understand the scope of the problem that you are trying to
deal with here. Because I really don't. How often is it that one of
these bankruptcies or going out of business occurs, is it something
that happens every year, every week, every month, once in a while,
really often, and thereby what kind of a problem is it really?
Dr. Foster. I think over the past 4 years we have seen it happen
twice. But if you happen to be the New England Aquarium, it only
needs to happen once. We have invoices from that Aquarium that
29
totaled something like $100,000 just for this one instance. And I
think it is important to note that while the Alliance of Marine
Mammal Parks and Aquariums and the American Association of
Zoological Parks and Aquariums (AAZPA) do have an arrangement
where they are in a sense self-regulating (i.e. they have an agree-
ment that they will take care of each other's animals), you have to
remember that those two groups, as far as we can tell, cover only
about 60 percent of the facilities out there that are holding marine
mammals. That means that 40 percent of the facilities are not cov-
ered. You would assume that the facilities that are members of
these two organizations are the best and are not likely to be irre-
sponsible or in danger of bankruptcy. The 40% who are don't have
the same backup.
Mr. Saxton. I realize that I am almost out of time, so let me just
ask Mr. Jenkins if he would like to comment before I run out of
time.
Mr. Jenkins. Congressman, we do not believe that there is any
need for a surety bond or any similar arrangement to provide for
these animals. As Dr. Foster indicated, on both occasions it was
members of the marine mammal public display community that
stepped in and in a sense if you would, rescued, found new homes
and transported those animals to those homes at their own ex-
pense. This is an obligation that we in the Alliance and the AZA
take very deeply. It is an indication of the animal care and the
level of commitment that we make to the animals that are in our
collections. We are prepared to continue doing this in the future.
Because of that, we do not see any need for a surety bond or any
similar arrangement.
Mr. Saxton. Mr. Chairman, may I just to finish, ask anybody
who may want to respond what the cost of such a surety bond
might be? I don't know.
Mr. Studds. Preferably in numbers rather than words.
Mr. Jenkins. Excuse me, I can find that out, just a minute. Ac-
cording to a cost analysis that we did on the regulations that were
published in October, it would cost $500 without collateral.
Mr. Studds. I thank the gentleman. The gentleman from Alaska.
Mr. Young. Thank you, Mr. Chairman. I will pursue the ques-
tion that Mr. Saxton began to ask at a later date, but Mollie, I
have some questions for you. You mentioned several proposals that
you are developing that would relate to the marine mammals in
Alaska. I have a copy of the Marine Mammal bill as prepared by
the U.S. Fish and Wildlife Service in Alaska which refers to these
topics. Are these the proposals that you are suggesting?
Ms. BEATTIE. I don't know what document you have, Congress-
man. Our proposed amendments have not been finalized out of the
Department of the Interior.
Mr. Young. You have not seen anything from the Alaska region
of the Fish and Wildlife Service?
Ms. Beattie. No, I have not.
Mr. YOUNG. Well, someone is not communicating then. Second,
you state the marine mammal populations in Alaska are healthy,
you state you want to work with the Alaska natives; you just heard
Caleb say that you had not communicated with him on your sug-
gestions. Then you go on to ask for new authority to develop sub-
79-705 0-94-2
30
sistence regulation which is none of your business, before a marine
mammal stock is declared depleted. If the stocks are in good shape
and the native community is jointly managing them, there is no
need for the authority. Why are you asking for new authority to
regulate subsistence?
Ms. Beattie. We are not asking for new authority and I was
reading very fast so let me go over it slowly. We believe that the
way the law works now is substantially good. It does leave us in
a position of finding ourselves, if we are headed toward depletion,
of only having authority to develop regulations once we hit that
point. We have to go through a formal rulemaking process at that
point. It may be one or two years past the point the species has
hit depletion. We are not proposing additional authority. Our pro-
posal is not to apply the regulations any earlier than they would
be applied now, but only to have authority to begin to develop
them. We would of course begin to develop them with the involve-
ment of native people. A couple of things I did not get to talk about
because of the time limit were also a proposal we have to increase
our grants and give grants to native organizations for the study
and management of marine mammals. And I would hope that those
kinds of mechanisms, with which we have great success, would
come into play.
Mr. YOUNG. Well, my concern is that under your proposal — I am
reading your — by the way, your answer and your written testimony
are not exactly the same, so I would suggest you review that very
closely. Why should Alaskan natives suffer under a minimum six
years of Federal management if the stock is found to be depleted?
What gave you the magic number of six years? Where did that
come from?
Ms. Beattie. I am not sure where it came from but I think it
is a time of review and monitoring that people
Mr. Young. In the meantime, as I said, I don't believe you have
any business being in subsistence. Period. I want you to know that.
If I have my way you are not going to be involved in it. But the
second thing is why do you want to ban the sale of oosicks?
Ms. Beattie. Ban the sale of oosicks?
Mr. Young. Yes, do you know what an oosick is?
Ms. Beattie. Yes, I do. Our proposal is
Mr. Young. For the audience, this is an oosick. This is an oosick.
Now, why do you want to ban the sale of this when only 3,000 wal-
ruses are being taken today, part of the subsistence provision. This
is part of craft from an animal. You prefer them to throw it away?
Ms. Beattie. No, sir. We are not proposing the banning of it. The
question was should these be considered handicrafts if they are not
worked, if they have not been handcrafted in any way.
Mr. Young. Well, has this been worked?
Ms. Beattie. I believe if it has simply been polished, we would
say no. If it had been carved and otherwise decorated, we would
say yes.
Mr. Young. But the difference is — what is wrong with having
this as part of the subsistence? Do you know of any case where the
walrus is being killed for the oosick?
31
Ms. Beattie. I don't know, Congressman. But what we are say-
ing is that in order to be considered a handicraft, it should be
worked. We are not proposing to ban the sale of oosicks.
Mr. Young. Well, if we put a knob on the end of it, is that con-
sidered work?
Ms. Beattie. I don't know technically, sir.
Mr. Young. See, that is the problem. Now this is a government
agency, getting involved in something they have no business being
involved in. This is not being misused.
Ms. Beattie. Congressman
Mr. Young. This is the thing I don't get. That is exactly right.
The only thing you suggest
Ms. Beattie. May I address your question?
Mr. Young. You suggest the courts rule — wait a minute — the
courts have ruled on an issue that can be considered what are na-
tive handicrafts. The courts have already ruled on this. And why
are you and the agency — you know, I am hostile, not necessarily to
you, but the agency. This is an example of the agency stepping out
of bounds. Why are you trying to overturn the court rulings of what
are native handicrafts?
Ms. Beattie. Our interpretation of the court ruling, Congress-
man, was that the standards in the Marine Mammal Protection Act
are not clear and are in need of clarification. And that is our in-
tent.
Mr. Young. But you lost the case. Did you not?
Ms. Beattie. Yes, on the basis
Mr. Young. So you want to change — after the court case you
want to change it to fit your shoe?
Ms. Beattie. Congressman, we are saying that we would like to
clarify something that we believe the court found to be unclear.
Mr. Young. You want to clarify it in your favor and against the
natives. And yet you say you want to work with the natives. Be-
cause that is my problem. You lost the case. You are proposing
change in the regulations so it fits your situation, not the natives.
The natives won that case. Is that correct?
Ms. Beattie. We are just simply preparing to clarify the defini-
tion of native handicraft, Congressman.
Mr. Young. And that has already been decided by the courts.
Mr. Chairman, I suggest respectfully that in this case the courts
are correct. And last, in your statement, Mollie, you state that the
polar bear has been taken by aircraft. Now, you have evidence of
that?
Ms. Beattie. We have some small evidence. It is not a major
problem, but we believe that this proposal, which is to restrict the
hunting of polar bears with aircraft and large motorized vessels, is
in keeping with the International Polar Bear Agreement.
Mr. Young. But you don't have any evidence? If you have, you
should be prosecuting, is that correct? You are talking about sub-
sistence taking. Now, we are not talking about abandonment or
poaching, we are talking about subsistence taking?
Ms. Beattie. That is true. We would, of course, exempt skin
boats, but we are simply talking about aircraft and large motorized
vessels.
Mr. Young. What is a motorized vessel?
32
Ms. Beattie. It would be defined by rule that it would be quite
a large — quite a large motorized vessel.
Mr. Studds. The gentleman's time has expired. Ms. Beattie
Mr. Young. Thank you, Mr. Chairman. I would like to rule out
this oosick later on to find out why you feel this can't be sold, it
has been manufactured, it has been proven, and by the way, you
can use it as a weapon.
Mr. Studds. Did I violate the law when one of your cagey con-
stituents sold me one of those things the last time I was there?
Mr. Young. That is what they want to say is violating the law.
And my point is they killed 3,000 walruses at the maximum for
subsistence purposes. And to have this proposed by an agency is
deplorable to me.
Mr. Studds. Ms. Beattie, you may not believe this but this is one
of his relatively mellow days.
Ms. Beattie. Fortunately, it is one of mine too.
Mr. Studds. It is just as well.
Mr. Young. Now, if we want to get in a real discussion young
lady, we will. And if you want to start this, we will. You just re-
member where I am and where you are.
Mr. Studds. The usick will go. Oosick, whatever it is. Actually
it looks more like an oosick in your hands. The gentleman from
California is next.
Mr. Cunningham. Thank you, Mr. Chairman. And I would like
to say to Mr. Pungowiyi, although you read your words I know they
came from your heart, and I understand the emotion. And in clar-
ity of time I would like to submit most of mine for the record, Mr.
Chairman.
[Statement of Mr. Cunningham follows:]
Statement of Hon. Randy "Duke" Cunningham, a U.S. Representative from
California
I would like to thank Chairman Studds for holding this important hearing on the
reauthorization of the Marine Mammal Protection Act (MMPA).
Since the MMPA was enacted in 1972, it has served to protect various marine
mammal populations in the wild from various human threats. The Act also safe-
guards marine mammals by managing human activities affecting them and their
natural habitat.
Through the years, however, much confusion has developed over what role each
agency should play. Most recently, this confusion was demonstrated in October
when the National Marine Fisheries Service issued their proposed permit regula-
tions. I believe that in the future this ambiguity will certainly lead to more conflict-
ing standards and law suits.
It is my understanding that the intent of the MMPA was to protect marine mam-
mals that lived in the wild, and that the National Marine Fisheries Service and the
U.S. Fish and Wildlife Service are responsible for its enforcement. It was also my
understanding that the Animal Welfare Act, enforced by the Department of Agri-
culture's Animal and Plant Health Inspection Service, regulates the care and main-
tenance of marine mammals in zoological facilities.
Mr. Chairman, as we discuss the issue of public display, it is imperative that we
make this less of a "regulatory mess". As a Member from San Diego, I am proud
to have both Sea World and the San Diego Zoo close to me, and the San Diego Wild
Animal Park in my district.
This Committee should note the important role played by zoos and aquariums.
These zoological institutions have spent $20 million on research over the past 5
years alone. This research, performed at no expense to the Federal Government,
benefits marine mammals in the wild and in captivity. These same institutions have
spent over $5 million since 1987 rescuing and rehabilitating stranded marine mam-
mals — again at no cost to the Federal Government.
33
It is important to keep in mind the benefits derived from the zoological commu-
nity's education, researcn, rescue, rehabilitation, and care and maintenance efforts
to protect marine mammals and their habitat. The great service that the zoological
community provides in these areas should be recognized and should not be discour-
aged by unnecessary and burdensome regulations. Such a burden could result in a
decision by the scientific and zoological community to scale back research and res-
cue efforts, thus requiring additional resources from the Federal Government.
Mr. Chairman, as we learn more about marine mammals both in the wild and
in captivity, let's be sure to strengthen Congress' original intent that the National
Marine Fisheries Service has ana should maintain the authority to issue permits
for "takes" from the wild and for the importation of marine mammals or marine
mammal parts from the wild and for the importation of marine mammals or marine
mammal parts from a foreign country. The term "take" should be explicitly clarified
to include only activities in the wild or affecting a marine mammal s natural habi-
tat.
Again, thank you for holding this hearing today. I look forward to working with
you on this important issue.
Mr. Cunningham. But Dr. Foster, you stated you worked for over
20 years with the other regulatory agencies. Mr. Jenkins and oth-
ers object to the intrusion and request that this Committee clarifies
the lines of jurisdiction. And I know whether it is Republican or
Democrat or CIA or FBI or Border Patrol or INS, there is always
a struggle for power and dominance within different organizations.
And I think in any of those instances and this one too where that
thrust for power or control is detrimental to what we want to do
in especially the Marine Mammal Protection Act, I think that is
where we need to step in and separate the pepper.
I used to date a young lady that worked at Sea World. Unfortu-
nately, she was more interested in the animals than she was in me
and she phased me out. But during that timeframe, I know the
care and the love, I know the veterinarians, I talked to some other
members up in the Seattle area, I know the care and the love that
these animals get and I understand, you know, some of the prob-
lems.
But I think, and I would hope with the Chairman and this Com-
mittee that we can look at some kind of compromise in this thing
because what we are all interested in, I think, is the protection of
these animals. I was going to ask you the questions about the
amount of $500, is that per animal or is that total?
Mr. Jenkins. That is per animal, per activity, such as a trans-
port. Every time we would move an animal, for example, within the
context of our breeding loan agreements, we would have to put up
a surety bond for the transport of that animal.
Mr. Cunningham. OK. It seems that it is the private industry
that provides, like you said when you had your problems, they
come in and step in, they feel a responsibility. But maybe even all
of those groups together across the United States and this Commit-
tee could look into it, Mr. Chairman, as forming some kind of alli-
ance to where the actual industry doesn't have to take care of it
themselves, but maybe an alliance would have a way to provide
funds, you know, to take care of these problems and step in. And
I would hope in a responsible way that this is the way the agencies
would step forward and do this. But I know the value — this Satur-
day we have an event called Game 24, which kids in an education
program are having at Sea World, in our zoo in San Diego and if
I was a critter I would rather be there than out in the open ocean
because of the care and love that they get there. I thank all the
34
participants and I thank Mr. Pungowiyi, you touched my heart
with your testimony and hopefully we can take care of some of
these problems. Thank you and thank you, Mr. Chairman.
Mr. Studds. Say to the gentleman we are all critters. Important
to remember.
Mr. Cunningham. Only these Republicans, Mr. Chairman.
Mr. Studds. I repeat. It may also reassure the gentleman that
it is our intention and the fashion of this Committee to try to re-
solve these matters by compromise and I am very hopeful that we
can. The gentleman from Maryland.
Mr. Gilchrest. Thank you, Mr. Chairman. I would just like to
quickly make a comment to public displays, the Baltimore Aquar-
ium and other aquariums around the country. I am not familiar
with other aquariums around the country, but in my estimation
after visiting the aquarium in Baltimore, it is a beautiful research
facility that allows the people of this mid-Atlantic region to under-
stand the importance of conservation and where we fit in with
other life forms on this planet. So however this bill — however it
moves through this Committee, and however we shape and form it
and decide on the final draft, I would like to make a comment that
the facility in Baltimore, and I am sure there are other facilities
around the country, offer the average individual an opportunity to
understand the absolute essential importance of where we fit in
with the rest of the life on the planet. And so, Mr. Jenkins, I will
work very diligently with this Committee to ensure that your facil-
ity continues to do what it does.
I would like to ask some other questions, mainly related to this
oosick. I didn't know what an oosick was — it looks like quite an
amazing thing. I am not sure how to pronounce everybody's name
but
Mr. Cunningham. That is an assault oosick.
Mr. Gilchrest. Well, it might be a semi-assault oosick. It is hard
to tell. There have been a lot of words exchanged here between dif-
ferent groups of people and agencies on the part of — it seems to me,
sitting here in an observation mode that just about everybody in
this room is talking about the same thing. Whether it is Fish and
Wildlife trying to preserve the number of walruses that carry these
oosicks or whether it is the indigenous proud people of the north-
ern regions of Alaska, Russia and Canada, trying to preserve their
dignity and integrity by pursuing a responsible lifestyle.
And if we could understand that I am sure the gentleman from
Alaska would not want to see the walruses become endangered or
extinct, and that they have lived with walruses and polar bears
and other species for 10,000 years, so their relationship is firmly
set in tradition.
I would hope that we can pass some fashion regulation that will
not create controversy between this government and the peoples of
Alaska, but create an opportunity so that we can see that there is
room for flexibility and room to work.
I would like to ask, and I truly apologize Mr.?
Mr. Pungowiyi. Pungowiyi.
Mr. Gilchrest. Pungowiyi. Mr. Pungowiyi. Who buys these
things? When you catch a walrus and you are going to sell some-
thing like this, who would buy it and what is your difference of
35
opinion with Ms. Beattie as to why this thing should be carved a
little bit so it looks like it has been fashioned? Is there a disagree-
ment with that and why?
Mr. Pungowiyi. Well, the people that buy them, people who are
curious, you know, about the walrus oosick (mostly it is tourists
who come up to Alaska). Also the handcrafted ones are the ones
where you carve out of ivory either a walrus head or a polar bear
head and attach it to one end of the oosick and then on the other
end is the flippers or some other ornament, you know, in essence
that makes it look attractive. I think that the Fish and Wildlife,
if I understand their proposed amendment, indicates that they
were more concerned about the sale of male organs and gall-
bladders in an unfinished raw form that would be used for
aphrodisiacs in the Asian countries.
Mr. GlLCHREST. Do you have a concern that — do you understand
that they want to preserve the walruses?
Mr. Pungowiyi. That is correct.
Mr. GlLCHREST. And do you have some concern yourself about
those particular body parts as far as somewhere down the line
someone abusing, let us say some Asian countries coming in and
having a big market for types of body parts. Is that a potential
problem?
Mr. Pungowiyi. If it was something that would come to our at-
tention, it would be something that we bring to the attention of
Fish and Wildlife. We have worked with them in terms of, if we
feel that there is an illegal activity that is of concern to the native
community, we will bring it to their attention. And as I mentioned,
the Act is very restrictive in terms of how it treats the Alaskan na-
tives, and what we can do and how we can do it with the products.
And I think that the Fish and Wildlife anticipates or envisions a
problem that is nonexistent. And they have not, and we have not —
it is my opinion or my knowledge, there has been no activity that
has surfaced concerning either the sale of oosicks in an unrefined
form or sale of gallbladders to the Asian countries. And, you know,
if they were concerned, I would assume that they would approach
us and tell us hey, we see this as something that is a potential
problem, let us work it out. That has not occurred. This is the first
time we heard today that they feel that there is a concern on sale
of gallbladders and male reproductive organs.
Mr. GlLCHREST. Could Ms. Beattie just respond briefly?
Ms. Beattie. I can respond that we are really trying, once again,
to clarify the definition of edible portion in the law as it is now,
and trying to stop what we believe is beginning to be a substantial
black market in these products for the Asian market. All it does
is try to define essentially edible portions as those traditionally
consumed by native peoples, and take out this sort of burgeoning
interest in gallbladders, which I am sure most of you have been
reading about, in the Asian market.
Mr. GlLCHREST. It seems that the gentleman from Alaska wants
to preserve the integrity of his people and their rights, but I am
sure he would also agree he wants to work with the Fish and Wild-
life to prevent a black market from occurring.
Ms. Beattie. And we would agree to that too.
36
Mr. Gilchrest. I guess communication is the art of success and
thank you for your testimony.
Ms. Beattie. Thank you.
[The statement of Mr. Gilchrest follows:]
Statement of Hon. Wayne T. Gilchrest, a U.S. Representative from
Maryland
I wish to commend the Chairman for calling this hearing and welcome this oppor-
tunity to hear the testimony today.
The Marine Mammal Protection Act is the world's premiere legislation, protecting
marine mammals and their natural habitats. I am confident that the Act will re-
ceive the continued support of this Committee that it so deserves.
When the Act was first passed, we granted a special, favored status to zoological
institutions that display marine mammals to the public in recognition of their im-
portant role in educating the public, a vital goal of the Act. A similar status was
granted to those engaged in scientific research on marine mammals in recognition
of their contributions to marine mammal science and conservation. The importance
that public display and scientific research have made in furthering the purposes and
goals of the Act cannot be underestimated. A facility located in my own State serves
as an excellent example of the vital role that these institutions play in supporting
the Act, and the life and development of their communities and States.
The National Aquarium in Baltimore is a world-class aquatic facility. Its primary
goal, as expressed in its mission statement, is to create in every visitor an attitude
of respect for the environment and the ecological balance of life. This is accom-
plished by providing quality educational and recreational experiences at all levels
that adhere to the highest principles of animal care, conservation and scientific re-
search. The Aquarium is Maryland's most popular cultural attraction, enjoying an
average visitation of over 1.5 million visitors each year since its opening in 1981.
Showcasing the majesty of all marine mammals, the Aquarium opened its Marine
Mammal Pavilion in 1990. The 94,000 square foot, $35 million Pavilion combines
live and participatory exhibitry to tell the real story of marine mammals around the
world. From the life-sized model of an actual humpback whale to the interactive ex-
hibits in Exploration Station, visitors learn in meaningful, lasting ways about wild
marine mammals, their unique adaptations to life in the water, and the current
threats to their existence.
The centerpiece of the Pavilion is the Lyn Meyerhoff Amphitheater encompassing
the dolphin faculty. This is a 1.2 million-gallon environment housing Atlantic
bottlenose dolphins. Surrounding the environment are the world's largest acrylic
windows providing visitors with an unprecedented look into the world of the dol-
phin. Public presentations focus on marine mammal adaptations and life beneath
the waves. Specially produced video and animation displayed on two, large tech-
nically advanced screens, punctuates the demonstrations with intimate footage of
wild marine mammals and their unique characteristics. These presentations are ac-
centuated with a strong conservation message focusing on the need to protect both
the aquatic environment and the marine mammals that live there.
To fulfill its goal to provide a quality educational experience, the Aquarium main-
tains a large Education and Interpretation Department with a professional staff ex-
perienced in the areas of public programs, curriculum development, resource mate-
rials, administration and grants, and professional communications. Educational
services are provided to the general public, Aquarium members and the tens of
thousands of school children who enter its doors each year. They are also offered
directly to individuals and organizations with local, national and international law.
In 1991 alone, over 254,000 individuals at all levels, including outreach and training
programs, participated in specific educational programs. In 1993, a record 157,000
school children visited the Aquarium with many participating in formal classroom
experiences. Some of these programs focused specifically on marine mammals and
their unique roles in the aquatic environment. Additionally, over 2,000 teachers par-
ticipated in aquarium teacher orientation, workshops and other teacher training
programs, who then took their new and expanded skills back to their classrooms.
As with the other members of its living collections, the Aquarium provides the
marine mammals in its trust with the very best in husbandry, nutrition, medical,
and environmental care. The high level of care by the professional staff is evidenced
by the successful births of two bottlenose dolphins one year after opening the facil-
ity. Both calves will celebrate their second birthday in one month. The Aquarium
also has second-generation captive-born harbor seals in its seal colony. The Aquar-
ium is an active member of the AZA Marine Mammal Taxonomic Advisory Group
37
and participants in the breeding programs for harbor seals, bottlenose dolphins and
beluga whales.
Basic and applied scientific research bolsters the animal care and husbandry pro-
grams of the Aquarium. Studies have been conducted on the anatomy of sea otters,
ocular segment disease in wild fur seals, the vocal behavior of beluga whales, the
chemical composition of dolphin tear secretions, and the circulating levels of hor-
mones in beluga whales. Scientists working with the Aquarium have authored near-
ly 100 peer-reviewed studies since its opening in 1981. These studies have applica-
tion both to captive and wild populations, and to marine mammal rehabilitation pro-
grams.
The Aquarium is an active member of the Northeast Region Marine Mammal
Stranding Network and is responsible for coordinating the rescue and care of
stranded marine mammals and sea turtles in the coastal areas of Virginia, Mary-
land, and Delaware. Aquarium Stranding Network workers respond to calls 24
hours a day to care for sick or injured wild animals. Assisting the professional
Aquarium medical staff are specially-trained paid and volunteer Aquarium staff
members. Collection of valuable data is one of the additional benefits of the Strand-
ing Network.
This program is funded entirely through public donations and the operating reve-
nues of the Aquarium. The costs of the program can be significant. For example,
the attempted rehabilitation of a juvenile pilot whale in 1992 required the use of
over $47,000 in Aquarium resources. Currently, the Aquarium annually expends
over $100,000 in combined resources towards the rehabilitation of wild animals res-
cued through the Network. As I speak, they are rehabilitating a dwarf sperm whale
that was stranded iust before Thanksgiving of last year. I note that significant
amounts of plastic debris were found in the whale's stomach. As involvement and
public awareness expands, greater demands will be placed on the Network, thus the
dedication of additional resources will similarly increase.
Mr. Chairman, I note that the Aquarium is but one of the many institutions
throughout our nation that are involved in this important work. I believe that we
need to ensure that their efforts, which are dedicated to the conservation of marine
mammals and their habitats, are recognized in the reauthorization of the Marine
Mammal Protection Act for it to be truly effective.
Thank you again, Mr. Chairman, for calling this hearing and providing me with
an opportunity to say a few words.
Mr. Studds. I thank our minority philosopher poet. The gen-
tleman from New Jersey.
Mr. Pallone. Thank you, Mr. Chairman. I noticed in the written
statements of Mr. Reynolds, he mentioned that there is no mecha-
nism to expedite permit issuance when necessary to protect or oth-
erwise benefit a species population or individual marine mammal
which is in jeopardy. And also I guess it was in Dr. Tyack's state-
ment he talked about a situation in Cape Cod with whales where
the NMFS was required to obtain permits to take the whales by
harassment and NMFS took a year to issue the permit and if the
scientists had not continued to rescue the whales illegally during
this year, whales might have died.
I am not sure if this relates directly to my situation in New Jer-
sey, it may very well. Because I am not sure that the permit was
the issue, but we had a situation I guess a month or so ago where
we were trying to basically rescue dolphins in the Shrewsbury
River which is in my district, that had been caught in the ice. In
other words, I think it was at the end of December, I forget exactly
the date, and all of a sudden the waters froze very quickly and the
dolphins basically were not able to get out of the river. And re-
quests were made from the Marine Mammal Stranding Center
(Bob Schoelkopf); I think the stranding center is actually in Mr.
Saxton's district. Where they wanted permission essentially to use
certain nets to rescue the dolphins and take them out of the river
and NMFS would not allow that because apparently they had some
sort of a policy that said that if there was some way possible for
38
the animals to leave, you know, that they were not going to inter-
fere with their movements.
I don't want to get into the specific configuration of the area, but
basically the dolphins were trying to — it seemed that the dolphins
were trying to swim south and the only way to get out was to swim
north and there was reason to believe that they were not able to
get out.
The reason I mention it is because the Marine Mammal Strand-
ing Center, well actually what happened is that the ice froze again
and we don't really know what happened to the dolphins, whether
they died or they managed to swim out or whatever. But it caused
a lot of concern over I guess the bureaucracy of getting this permis-
sion from NMFS, which may have been a permit or not and may
have related to what Mr. Reynolds said, I am not sure. But it cer-
tainly sounds like it to me.
What the locals are saying, what Mr. Schoelkopf and the Marine
Mammal Stranding Center is saying is that they would really like
the policy changed so that more input could come from local people,
those who are on the scene at the time, because they felt very
strongly that these animals were in danger and that it was proper,
appropriate action to take them out and they felt that they were
hindered by NMFS's policy.
What I would like to do with the permission of the Chairman is
to — I know we have already sent some letters on this, but perhaps
give you more details about it, but I guess I wanted to ask either
Mr. Reynolds or Dr. Tyack or whoever to respond to this and
whether this actually relates to the permit concerns that you raised
in your testimony.
Dr. Reynolds. I will take a stab at it first. Before I make some
general comments, I would note that I am not familiar with the
specifics of the situation you described, but the problem is that
there are instances where fast action is needed in order to preserve
individual animals or populations or potentially species. Right now,
there is no mechanism now to get around the 30-day comment pe-
riod. And we would agree with you and recommend that procedures
be changed to allow emergency responses to this sort of situation.
There have been other situations where lack of ability to respond
quickly has been a problem, and I will give you one example. Back
in the early eighties there was a die off of monk seals on Laysan
Island. Hawaiian monk seals are an endangered species. At that
time, there were no biomedical data, no clinical data available on
monk seals, and so there was an attempt to get a permit quickly
or to waive the permitting process in order to sacrifice an animal
to get normal blood values so you could assess what is pathological.
This would allow you to start to make a determination on why
members of this endangered species were dying off. And it wasn't
possible to do that.
And so, again, without knowing the specifics of your situation, I
would say that it might fall into this category. I would be inter-
ested in learning more about it, but clearly there are times when
the health of animals is in jeopardy and it would nice to be able
to act very quickly.
Mr. Pallone. Well, perhaps what I could do, with the permission
of the Chairman, is send you some information on it and perhaps
39
we could sit down and talk about what could be done to change the
regs or the policy, because it sounds almost exactly like what hap-
pened in Cape Cod to me and we really don't know whether or not
the animals were saved or if they actually died because of the frost.
Thank you.
Mr. Reynolds. We would be happy to sit down and talk with
you.
Mr. Studds. Thank you. I want to thank all of the panel. I would
like to reassure the members that the phrase "public display com-
munity" does not refer to this institution. It bothers me a lot when
I hear that. It has been a fascinating morning. I apologize for the
interruption and I appreciate your patience and in some cases your
endurance, to say nothing of your mellowness, and we will stand —
we look forward to working with you all. I am very hopeful we can
work this out. The Subcommittee stands adjourned.
[Whereupon, at 12:32 p.m., the Subcommittee was adjourned,
and the following was submitted for the record:!
40
STATEMENT OF
NANCY FOSTER
DEPUTY ASSISTANT ADMINISTRATOR FOR FISHERIES
NATIONAL MARINE FISHERIES SERVICE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
U.S. DEPARTMENT OF COMMERCE
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES
COMMITTEE ON MERCHANT MARINE AND FISHERIES
U.S. HOUSE OF REPRESENTATIVES
FEBRUARY 10, 1994
Mr. Chairman and Members of the Subcommittee: I am Dr. Nancy
Foster, Deputy Assistant Administrator for Fisheries, National
Oceanic and Atmospheric Administration (NOAA) , U.S. Department of
Commerce. I appreciate the opportunity to testify before this
Subcommittee .
Last year you held a hearing on interactions between marine
mammals and commercial fishing under the Marine Mammal Protection
Act (MMPA) . Today our testimony addresses other aspects of the
Act, including permits for purposes of public display, scientific
research, and enhancement.
Over twenty years ago, Congress declared that marine mammals
merited special protection and passed a landmark piece of
legislation for this purpose, the MMPA. During the last twenty
years, we have been careful to administer this important law
consistent with its policies and objectives. The MMPA not only
declares a strong public interest in the protection and humane
treatment of all marine mammals, both those found in the wild and
41
in captivity, but it also declares a public interest in the
conduct of certain activities that involve these marine mammals,
such as scientific research and public display. As with many
laws that protect our Nation's natural resources, the MMPA
attempts to balance these sometimes conflicting public interests.
Consistent with these mandates, we have worked hard to carry out
this balancing act while, at the same time, keeping to a minimum
the administrative burden on the businesses and individuals whose
activities are regulated.
In 1988, Congress enacted amendments to the MMPA that affected
public display and scientific research permits. At about the
same time, the National Marine Fisheries Service (NMFS)
recognized that, in response to persistent problems under the
current regulatory regime and to address the many issues and
questions of approximately 17 years of permit administration, an
in-depth review of our permit program was necessary. This
comprehensive and lengthy review of the permit program for
scientific research and public display included extensive
involvement by all interested parties. The review has resulted
in a number of administrative improvements, many of which we have
already begun to implement.
In addition, we proposed a rule to revise permit regulations on
October 14, 1993. These revised permit regulations address
comprehensively the many issues and problems that were examined
42
during the review. The comment period for these proposed
regulations closed on January 28, 1994. We received well over
150 comment letters representing a wide range of views.
While a thorough analysis of these comments will take some time,
several recurring themes are clear and reflect the many strongly
held and widely divergent opinions of various groups and
interests, some of which are represented at this hearing today.
Many of these issues concerning marine mammal public display and
scientific research have become increasingly controversial,
particularly in the last ten years. This Committee and Congress
addressed several of these issues in the 1988 amendments to the
law; including requiring education or conservation programs,
public access, and regularly scheduled hours for the public
display of captive marine mammals. And, these same 1988
amendments also required that scientific research involving
marine mammals must be bona fide, avoid unnecessary duplication,
and involve lethal methods only where there is no alternative.
Today, several public display and scientific research issues are
again before this Committee in an even more intense and
fundamental manner .
I believe it would be most helpful to this Committee if I address
briefly a few of the issues that have arisen in the last several
months in response to the proposed revised permit regulations and
recent litigation. I expect these issues to be the focus of
43
today's testimony and this Committee's review of permit issues.
These issues fall into two broad categories.- first, whether the
MMPA protects captive marine mammals, and second, what and how
activities involving marine mammals in the wild should be
regulated, particularly scientific research activities.
Captive Marine Mammals
Representatives of segments of the public display community
believe there is duplication among Federal agencies where captive
marine mammals are concerned. And, as a result, these groups are
asking this Committee to consider amending the MMPA to address
their concern. As I will explain in greater detail later in this
testimony, we do not agree that such duplication exists among
Federal agencies concerning captive marine mammals; and we
believe that such an amendment is unnecessary. If such an
amendment is nonetheless the decision of this Committee and
Congress, unless carefully crafted, it would put at risk the
special protection provided captive marine mammals under the MMPA
and could itself create duplication of responsibilities or, at a
minimum, require additional funding and resources for
implementation.
In a related matter, The Mirage, a recent public display permit
holding casino- resort in Las Vegas, filed a lawsuit in September
1992 in Federal District Court in Nevada. The Mirage wished to
44
begin conducting a swim-with-the-dolphins program similar to four
existing experimental programs . NMFS denied this request by The
Mirage, as we had several other such requests, explaining that,
until a study was completed on the effects of such swim-with
programs on the dolphins, no additional such programs would be
authorized. The Mirage then filed a lawsuit to overturn this
decision by NMFS. As one of several counts in its lawsuit, The
Mirage challenged whether the MMPA applies to captive marine
mammals at all.
On November 24, 1993, the District Court judge decided this case
in favor of The Mirage, ruling that the MMPA does not apply to
captive marine mammals. Although the decision interpreted the
statute, the parties and the court agreed that this decision
applies only to The Mirage pending the outcome of an appeal.
Although the ruling allows The Mirage to conduct a swim-with
program before completion of the study, The Mirage has agreed in
the interim to abide by most of the conditions contained in the
permits of the four experimental swim-with-the-dolphins programs
that are a part of the study. The Department of Commerce has
asked the Justice Department to appeal this District Court
ruling.
Now, following this lawsuit by The Mirage, and more than twenty
years after enactment of the MMPA, the issue is being raised as
45
to whether or not the MMPA applies to those marine mammals held
in public display facilities.
We believe the current law most certainly does apply. NMFS
through the MMPA, and the Animal and Plant Health Inspection
Service (APHIS) through the Animal Welfare Act, both assert
jurisdiction over captive marine mammals, but with different
emphasis and under different conditions. The protection for
marine mammals under these laws is complementary, not
duplicative. It is important that the responsible Federal
agencies work closely together to avoid duplication and ensure
that actions are coordinated and limited agency resources are
used in the most effective and efficient manner practicable,
while providing the best possible protection for marine mammals.
We believe, as does APHIS, that our interagency agreement is
working well and provides an appropriate mechanism for resolving
any issues that arise concerning our respective roles in
protecting marine mammals .
A few facts and some background will help to illustrate how
Federal efforts are currently being coordinated. Under the
existing MMPA, all marine mammals, both wild and captive, have
been declared by Congress as worthy of special protection. It is
within this context that NMFS and the U.S. Fish and Wildlife
Service administer the permit provisions of this law. APHIS
46
administers the Animal Welfare Act as it applies to many kinds of
animals, including marine mammals.
We work closely with APHIS. When we review an application for a
public display permit, in addition to considering the public
display- specific requirements of the MMPA, we ask APHIS to review
and comment on the application, considering the results of their
most recent routine inspection of the applicant's facility, or,
if the facility is new, to conduct an inspection. In this
manner, we rely on APHIS assurances that applicable care and
maintenance standards for marine mammals are met by the applicant
before issuing a permit. Then, as a condition of the public
display permit, NMFS requires the permitted facility to adhere to
these care and maintenance standards .
Other terms and conditions of the permit incorporate public
display-specific requirements of the MMPA, provide a mechanism
for tracking the marine mammals held by the facility, and meet
other requirements of the law applicable to captive marine
mammals. We routinely work with APHIS in investigating
complaints regarding the humane care and treatment of captive
marine mammals. We recently reviewed our working relationship
with APHIS and both agencies concluded that we are working
together well and our long-standing interagency agreement for
this purpose remains effective.
47
As background, after enactment of the MMPA in 1972 and until
1979, NMFS included detailed terms and conditions for the care
and maintenance of captive marine mammals in all public display
permits. During this seven year period, captive care standards
for marine mammals were applied and enforced solely by NMFS and
the Fish and Wildlife Service under the authority of the MMPA;
there were no such standards in existence under the Animal
Welfare Act.
In 1979, several steps were taken to avoid duplication. APHIS,
recognizing the unique captive care and maintenance needs of
marine mammals, and after consultation with the Marine Mammal
Commission, NMFS, and the Fish and Wildlife Service, promulgated
for the first time marine mammal standards under the Animal
Welfare Act. Additionally, NMFS and the Fish and Wildlife
Service signed an interagency agreement with APHIS to avoid
duplication and share available resources. Finally, to avoid
such duplication, NMFS then amended all public display permits to
reference these care and maintenance standards issued by APHIS.
The 1993 revisions in our October permit regulations continue to
apply these fifteen-year-old care and maintenance standards to
permits issued under the MMPA.
With its field inspection staff, APHIS was and continues to be in
the best position to conduct routine inspections of facilities.
8
48
We believe that this cooperative interagency approach will not
require additional resources by either NMFS or APHIS to carry out
our respective responsibilities concerning captive marine
mammals .
During our permit program review, many serious questions were
raised regarding the adequacy of these now fifteen-year-old
marine mammal care standards. To address these concerns, APHIS
has agreed to initiate a review of the standards in cooperation
with NMFS, the Marine Mammal Commission, and the Fish and
Wildlife Service. These are the agencies with the most knowledge
of marine mammal behavior, physiology and population dynamics.
It remains our position that in the unlikely event the revised
APHIS standards under the Animal Welfare Act do not reflect the
special status and protection afforded marine mammals under the
MMPA, only then might it become necessary to supplement, but not
duplicate, such existing standards.
We believe that both the spirit and letter of the existing MMPA
confer jurisdiction over captive marine mammals. However, we
agree that, since a question has arisen as to whether the MMPA
applies to captive marine mammals, this issue is too important to
leave any doubt as to the intent of Congress. We agree that the
question should be dealt with directly and that the intent of the
law should be clear.
49
This Committee and Congress may reaffirm that the MMPA does
protect captive marine mammals; either retaining that authority
with the Secretary of Commerce and NMFS or assigning entirely the
jurisdiction and responsibility for captive marine mammals under
the MMPA to a different Federal agency, such as the Secretary of
Agriculture and APHIS. Or, this Committee and Congress may
decide that the MMPA applies only to marine mammals in the wild
and not to captive marine mammals. Importantly, we request in
the strongest terms that any considered amendments be drafted in
the clearest possible manner. At a time when public controversy
and criticism concerning captive marine mammals continues to
increase, it is critical that the regulated communities and the
public understand which laws apply and what agency or agencies of
the Federal government are responsible for oversight of captive
marine mammals, in what capacity and to what degree.
It is our position that, if this Committee and Congress reaffirm
that captive marine mammals are protected by the MMPA, the
Secretaries of Commerce and the Interior, in consultation with
the Marine Mammal Commission, have the most relevant expertise
regarding the issuance of permits for activities involving such
marine mammals. These same agencies can best ensure that this
law is implemented consistent with the intent of Congress.
If, however, this Committee and Congress decide to amend the MMPA
to assign jurisdiction and responsibility for captive marine
10
50
mammals to the Secretary of Agriculture and APHIS, then it is
particularly important that this amendment assign all
responsibility for captive marine mammals to APHIS in the
clearest possible terms. In the event Congress decides to take
this approach, the Department of Agriculture should be consulted
as to their willingness and capability to assume these
responsibilities .
First, the law needs to clearly state whether captive marine
mammals are afforded the special protection of the MMPA, or if,
while held captive, they are subject only to the jurisdiction of
the Animal Welfare Act. If the former is true, then
responsibility must be clearly assigned for oversight of all
MMPA-mandated activities involving these animals, including
public display requirements for acceptable education and
conservation programs and public access, and requirements for
scientific research and enhancement specific to captive marine
mammals. Other responsibilities that would need to be explicitly
assigned under such circumstances include the tracking and
monitoring of captive marine mammals, including the development
and maintenance of a comprehensive marine mammal inventory
database; the development and implementation of standards for
"interactive" programs, including swim-with-the-dolphins programs
and captive feeding programs; and addressing the many marine
mammal -specific captive maintenance concerns addressed in our
proposed revised permit regulations.
11
51
Before I leave captive display questions and move on to the
important issues affecting marine mammals in the wild, I would
like to give just one example of the variety of complex problems
that must be dealt with in deciding this jurisdictional issue.
The problem to be examined is responsibility for the care and
maintenance of abandoned maine mammals held in captivity for
public display. The following brief, but illustrative, example
is an incident that occurred just over a year ago in which 13
harbor seals and California sea lions held at the Cape Cod
Aquarium were essentially abandoned. A few months before the
incident, the Cape Cod Aquarium was issued a public display
permit after several months of addressing significant concerns
raised by NMFS . Many of these concerns arose from a succession
of complaints and allegations by the public of substandard care
and other problems at the Cape Cod Aquarium. Prior to the
abandonment of these captive marine mammals, the Cape Cod
Aquarium was repeatedly found by APHIS to be in compliance with
applicable care and maintenance standards under the Animal
Welfare Act. Following the abandonment of these marine mammals
and closing of this public display facility to the public, APHIS
explained that they no longer had jurisdiction over these marine
mammals under the Animal Welfare Act because the animals had been
removed from public exhibit; leaving only MMPA protection under
our jurisdiction. Consistent with a pre-existing verbal
agreement between the Cape Cod Aquarium and the New England
Aquarium to care for these animals in an emergency, under the
12
52
MMPA we authorized the New England Aquarium to assume custody and
responsibility for the care and maintenance of these abandoned
marine mammals. Although this willingness on the part of the New
England Aquarium to assume custody of these marine mammals
addressed the immediate problem of their care and maintenance,
the much more difficult problem was their placement at other
acceptable facilities and the cost in both space and time of
their care until such placement could be arranged.
Although these sea lions and harbor seals were eventually placed
at other facilities, it took several months of dedicated effort
by our Regional staff, the staff of the New England Aquarium, and
our permits office to find facilities willing to accept them --
during the last stages of this effort the American Association of
Zoos and Aquariums and the Alliance of Marine Mammal Parks and
Aquariums also assisted in this several month effort to identify
facilities that would be willing to accept custody of these
animals. The New England Aquarium incurred over $100,000 in
personnel and captive maintenance costs in the care and transport
of these abandoned animals. We are aware of the extent of these
costs because, even though there have never been Federal
appropriations to cover such costs, we received invoices from the
New England Aquarium itemizing their expenses .
This is only one of several instances that point out one of the
more significant growing problems of the public display industry
13
53
-- the need to care for and place abandoned or otherwise unwanted
marine mammals, especially pinnipeds. Although this problem is
likely to occur only in the most marginal of facilities, it is
nonetheless a potential problem for all public display
facilities; as the Cape Cod incident clearly illustrates. In our
proposed revised permit regulations we propose a method for
beginning to address this problem. These proposed regulations
provide for, and we would much prefer, industry self -regulation
and pre -placement planning on this issue. However, only
60 percent of public display facilities are members of either the
American Association of Zoos and Aquariums or the Alliance of
Marine Mammal Parks and Aquariums. And, even if these groups
agree to placement of marine mammals among their member
institutions, there will always be a number of public display
facilities that will not be included in any association- sponsored
placement plan for abandoned marine mammals. It is for these
facilities that the proposed permit regulations propose a surety
bond that, upon abandonment or seizure of captive marine mammals,
may be invoked by NMFS to defray at least some of the expenses of
the permit holder that assumes temporary or long-term custody of
such marine mammals.
NMFS believes that this and similar difficult problems
increasingly jeopardize the health and welfare of captive marine
mammals, and must be addressed directly. Again, to the extent
possible, these problems should be addressed by the public
14
54
display industry itself. However, where, for one reason or
another, the health and welfare of captive marine mammals falls
through the cracks, these marine mammals must be protected by the
regulating agency under the MMPA, whether it is NMFS or APHIS.
Marine Mammal s in the Wild
As for activities involving marine mammals in the wild, we
believe that some changes in the law are necessary.
The scientific study of marine mammals is an important source of
information on these protected species. And, I can tell you from
repeated first-hand experience, that many marine mammal
scientists believe there is something wrong with a law that
requires them to go through an application, public notice, and
review process to get a permit, while this same law allows
commercial fisherman to incidentally take marine mammals under a
simple registration procedure. This perception that marine
mammal research is being regulated unfairly is reinforced when
the question is raised, "Which of these activities, commercial
fishing or marine mammal research, is more likely to benefit
marine mammals?"
At present, scientific research that involves only non-intrusive
close approach must meet the same permit requirements as apply to
more intrusive research. Applying these same permit requirements
15
55
to all research activities conducted in the wild, including those
involving non-intrusive close approach, has proven inefficient
and inflexible. Clearly, the permit requirements of the MMPA are
too burdensome and too lengthy when the research involves only
the non- intrusive close approach of marine mammals in the wild.
Much of the scientific research on wild marine mammals involves
only non- intrusive close approach without significant contact or
restraint. We believe that the MMPA should be amended to shorten
and simplify the permit process for scientific research involving
these low- impact types of harassment.
In addition, there are other activities that have proven
important in increasing the public's understanding and
appreciation of marine mammals. These include both activities
that allow the public to observe these magnificent animals in the
wild and efforts to bring documentary films and photographs of
wild marine mammals to the large segment of the public that will
never be able to observe them in their natural habitat. The law,
as presently written, does not provide an exception to the
general moratorium on the taking of marine mammals for purposes
of public observation or wildlife photography, resulting in a
virtual prohibition on the non- intrusive close approach of wild
marine mammals for such educational purposes. Such non-intrusive
close approach of wild marine mammals should be authorized under
the law and monitored appropriately by NMFS . However, it is
16
56
clear that the such authorization and monitoring should be simple
and straightforward, and that such activities should not be
subject to the same review as more intrusive procedures.
We propose that the MMPA be amended to provide for the permitting
of non- intrusive close approach of marine mammals in the wild for
purposes of public observation and wildlife photography. We also
propose that the law be amended to allow the Secretary to waive
the 30-day public comment period for both scientific research
permits and the new permits for public observation and
photography, where such permits involve only the non- intrusive
close approach of marine mammals. We would be pleased to discuss
other amendments that would achieve these same objectives.
There are a few other issues that cannot be addressed solely
through the regulatory process or improved administration of the
permit program. These issues, if they are to be addressed,
require amendments to the MMPA. These include:
1) The exchange of native art between U.S. and foreign museums
or other institutions open to the public, where such native art,
in whole or part, includes marine mammal parts subject to MMPA
prohibitions. The MMPA does not include a specific provision for
exempting art works and handicrafts containing marine mammal
parts from the prohibition on importing such parts. If such
native art is not purchased or sold, NMFS believes that the MMPA
17
57
should be amended to provide for the import and export of such
native art for the purpose of its exhibit in a museum or other
similar institution open to the public, or for other native
cultural purposes.
2) Similarly, the MMPA does not provide an efficient mechanism
to authorize small levels of harassment incidental to other
activities. The regulatory process of section 101(a) (5) of the
MMPA is a lengthy procedure that precludes authorizing some
activities with only minor impacts. The Act should be revised to
allow small, incidental takes of marine mammals that have only a
negligible impact under a much more straightforward, simpler, and
less lengthy process.
3) The exemption from the MMPA for animals already in captivity
prior to the enactment of the MMPA should be rescinded. Although
this exemption may be appropriate in the case of marine mammal
parts or products, NMFS believes it is time, more than 20 years
after enactment of the MMPA, to remove this exemption as it
applies to living animals held captive for public display or
scientific research purposes. This exemption served its purpose
during the initial period following enactment of the MMPA.
Marine mammals presently exempted from the provisions of the MMPA
should be afforded the same protection under the MMPA as all
other marine mammals . It is time to ensure that the provisions
18
58
of the MMPA apply consistently to all marine mammals held for
public display or scientific research purposes.
Thank you Mr. Chairman and Members of the Subcommittee for this
opportunity to express the views of the Department. I would be
pleased to answer any questions you or other Members may have.
19
59
Responses from Dr. Nancy Foster to
Questions by H. James Saxton Before the
Subcommittee on Environment & Natural Resources
February 10, 1994
Your questions were in reference to the Proposed Rule to
Revise Regulations for Public Display and Scientific Research
Permits under the Marine Mammal Protection Act (MMPA) , Endangered
Species Act (ESA) , and the Fur Seal Act (FSA) , published in the
Federal Register on October 14, 1993.
1) Why are these Regulations Necessary?
The proposed rule is necessary to address concerns identified
by the regulated communities, conservation organizations, and
federal agencies regarding inconsistencies and uncertainties in the
permitting process; the lack of enforcement against non-compliance
and abuse of permit privileges; and the vulnerability to frequent
litigation.
Briefly, following the extensive amendments Congress made to
the MMPA in 1988, NMFS initiated an open review of the permitting
process. The proposed rule is the product of that review. The
rule proposes to implement the 1988 amendments, consolidate
existing regulations under one section of the U.S. Code, establish
consistent and predictable regulatory requirements, eliminate
duplicative procedures, clearly define permitted activities to
avoid unnecessary litigation, and establish clear and enforceable
responsibilities for permit -holders to address problems with non-
compliance and abuse.
2) Why are they not overreaching?
I believe you were referring to two primary areas of criticism
by the public display industry: (1) the proposal for a surety bond
and (2) the requirement for education and conservation programs.
First, the proposal for a $10,000 surety bond to be provided
for each marine mammal in captivity is to cover the expense of
care, transport and final disposition in the event of abandonment.
The amount and the mechanism of a surety bond was included in the
proposed rule to initiate broad discussion of this serious problem.
This would be a one-time cost, per animal, per facility, with per-
facility costs never exceeding the actual number of animals held by
that facility. The industry estimates the maximum cost to be $500
per animal .
Beyond the humane issues involved with the disposition of
abandoned animals, there is the economic issue of public monies
60
being used to bail out for-profit businesses. For years, NMFS has
encouraged the display industry to self -insure against this
problem. The larger, more prominent display facilities, under
membership of the AZA (American Association of Zoos and Aquariums)
and The Alliance of Marine Parks and Aquariums, indicated during
testimony that they are willing to initiate discussions on this
subject. Although we applaud efforts to address this issue, it is
important to note that 4 0% of the industry does not hold membership
with these organizations. These are often small, marginal
facilities, with histories of non-compliance and economic
uncertainty. As such, it is important that the animals held at
these facilities be provided for.
Second, the other area being criticized as "far-reaching" by .
the public display industry is the 1988 Congressionally mandated
requirement for educational and conservation programs to be
provided at public display facilities. These are to meet
"professionally recognized standards", and be "acceptable to the
Secretary of Commerce". Unfortunately, "professionally recognized
standards" have not yet been developed by the public display
community.
Critics mistakenly assert that NMFS is proposing to regulate
the content of these programs. Based on the diversity of display
facilities, NMFS recognizes that the content of education and
conservation programs, and the methods employed to communicate _ to
the public, will necessarily vary. Therefore NMFS has no intention
of attempting to dictate or regulate the conte nt and style of such
programs . While leaving decisions of form and substance to the
professional educators, as they should be, the proposed rule
includes as a basic "acceptable" requirement that, whatever the
content or technique, such educational programs must effectively
convey information that is accurate and consistent with the
policies and objectives of the MMPA.
A Facility that conducts a professional education or
conservation program should have no problem meeting such a basic
requirement .
3) How are we going to pay for them?
The NMFS has requested no increase in funding from current
levels. Rather, with the increased efficiency expected to accrue
from the proposed rule, NMFS anticipates being fully able to
conduct the program envisioned by the proposed rule.
61
STATEMENT OF MOLLIS BEATTIE, DIRECTOR, U.S. FISH AND WILDLIFE
SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE HOUSE MERCHANT
MARINE AND FISHERIES COMMITTEE, SUBCOMMITTEE ON ENVIRONMENT AND
NATURAL RESOURCES, CONCERNING REAUTHORIZATION OF THE MARINE MAMMAL
PROTECTION ACT
February 10, 1994
Mr. Chairman, I appreciate the opportunity to discuss the Marine
Mammal Protection Act. In addition to an overview of the
activities of the U.S. Fish and Wildlife Service, my statement
provides information on the status of marine mammals under our
jurisdiction and proposals we are considering for amending the Act.
FISH AND WILDLIFE SERVICE INVOLVEMENT
The Act establishes a Federal responsibility for the conservation
of marine mammals. Under the Act, the Secretary of the Interior,
through the Service, is responsible for protecting and managing
polar bears, sea and marine otters, walruses, manatees, and dugong.
In general, the Act established a moratorium on the taking and
importation of marine mammals, but contains procedures for waiving
the moratorium under certain circumstances. The taking of marine
mammals by Alaska Natives for subsistence or for creating and
selling authentic Native handicrafts and clothing is exempted from
the moratorium, as long as it is accomplished in a non-wasteful
manner .
The Act establishes a procedure for transferring to the States the
authority to manage marine mammals. The Act also authorizes the
79-705 0-94-3
62
Secretaries of the Interior and Commerce to allow incidental, but
not intentional, take of small numbers of marine mammals during
commercial fishing operations — an issue that has received
considerable attention since the Act was last amended in 1988 —
and in association with other, specified activities.
Within the Department of the Interior, the Service is responsible
for managing marine mammals under our jurisdiction, and for
enforcing the moratorium on taking and importing marine mammals and
marine mammal products. In carrying out these responsibilities, we
evaluate and process requests for waivers of the moratorium, as
well as requests for transfer of management authority to the
States, and we conduct law enforcement activities.
The Service also advises the Department's Outer Continental Shelf
Development Program and reviews measures proposed to protect marine
mammals during offshore oil and gas exploration and development.
Finally, we participate in the development of international
agreements and activities.
Under authority of the Endangered Species Act, the Service lists
marine mammals under its jurisdiction that are endangered or
threatened, and we enter into consultations with Federal agencies
to protect such species.
In conducting these activities, the Service maintains a cooperative
63
working relationship with the Marine Mammal Commission and its
Committee of Scientific Advisors, the National Marine Fisheries
Service, the newly created National Biological Survey, the Bureau
of Indian Affairs, and other Federal agencies. We also cooperate
with affected States, Alaska Native organizations, conservation
organizations, and other entities on marine mammal issues of mutual
concern.
STATUS OF MARINE MAMMALS UNDER SERVICE JURISDICTION
All three species of manatees, the dugong, the marine otter, and
the southern or California sea otter are listed as endangered or
threatened under the Endangered Species Act and, therefore, are
considered depleted under the Marine Mammal Protection Act. Marine
mammal species under Service jurisdiction in Alaska are considered
to be non-depleted and populations are currently believed to be
healthy.
The Pacific walrus, a population shared with Russia, had an
estimated minimum population of 201,000 in 1990 based on a joint
Russia/U.S. population survey. Although this estimate is less than
the estimate of 232,000 animals derived from the 1985 survey,
anomalous ice conditions prevailed during the 1990 survey and
comparing the two estimates is, at best, a tenuous proposition.
The Service believes the Pacific walrus population is at pr near
historic high levels and is stable or slightly decreasing.
64
The polar bear population in Alaska is shared with both Canada and
Russia and is believed to number about 5,000 animals. The
northern, or Beaufort Sea, population is estimated to be 1,800
animals. The western, or Bering-Chukchi Sea, population is
believed to number about 3,200 animals. The Service considers
polar bear stocks in Alaska to be healthy and possibly increasing
slightly.
A growing population of sea otters in Alaska, estimated to number
between 100,000 and 150,000 individuals, has become reestablished
in most of the species' historic range and is considered by the
Service to be healthy. Although the population as a whole is
healthy, specific subpopulations within the State are of concern.
The south-central Alaska sea otter population is in a recovery
phase from acute mortality following the Exxon Valdez oil spill of
1989, and long-term sublethal effects on the population are not
well understood. In southeast Alaska, harvest numbers have
increased dramatically and there is concern that the population
level may be affected.
Although the Service believes that population levels of these three
Alaska marine mammals are sound, we are considering proposals
addressing issues necessary to ensure their long-term viability.
These proposals include the following, that will be discussed in
the order they appear in the Act.
65
Whether the Act's language is precise enough to allow specific
protection of marine mammal habitats has been questioned. There is
also confusion as to whether the Act authorizes actions solely for
species below optimum sustainable population levels, or for all
marine mammal species irrespective of the status of their
populations. Further, there is an apparent inconsistency in the
use of the terms "major objective" and "primary objective."
In section 2(7) of the Act, Congress found that marine mammal
management should "maintain the health and stability of the marine
ecosystem." While single-species oriented initiatives have
achieved some important success under the Act, greater emphasis
must be placed on understanding and managing the complex factors
that govern the health and stability of the marine environment.
By adopting an anticipatory, ecosystem-based approach to managing
marine mammals and their habitat, it should be possible to protect
living marine resources, avoid legal restrictions that could hinder
resource use and development activities that impact protected
species, and advance the Act's primary goal of marine ecosystem
health and stability.
To ensure the authority to develop regulations to protect specific
threatened or vulnerable habitats, we are considering recommending
amendments to sections 2 and 3 to include and broaden habitat
protection provisions. The habitat protection provision of the
66
1973 International Agreement on the Conservation of Polar Bears, a
provision that has not been fully implemented, may also need to be
specifically addressed.
The Service is concerned with the clarity of definitions in section
3. For example, the Act is ambiguous about what constitutes an
authentic Native handicraft, and the lack of specificity hinders
management activities, such as providing sound legal advice to
Native hunters.
The term "edible portion" is not currently defined, and that has
led to the sale of gall bladders and male reproductive organs as
aphrodisiacs or for other purposes. The increased sale and
interstate transportation of these items could affect the harvests
of certain species, such as polar bear. We are looking at ways to
exclude these items from the definition of edible portion in
section 101(b)(2) of the Act.
To clarify the standards that apply, the Service is examining
modifications to section 101 of the Act to specifically authorize
the Secretary to address import and taking moratorium waivers on a
population and species-specific basis, thus assuring foreign
governments that the Secretary would evaluate their management
programs on the same basis as waivers of the moratorium for
domestic management programs. This would slightly ease current
conditions that prevent legally sport-hunted marine mammals from
67
being imported into the United States, a restriction that is often
insufficiently supported by biological rationale.
The Service is considering the need for amendments to section
101(b) to address methods and means of harvesting marine mammals,
and to ensure consistency with the 1973 International Polar Bear
Agreement. Currently, the Act does not contain any restrictions on
methods and means for Alaska Native hunters, and therefore may be
inconsistent with the 1973 agreement. Thus, we are considering
proposing a prohibition on the use of aircraft and large motorized
vessels in the taking of polar bear by Alaskan Natives, including
the use of any aircraft to locate, land, and shoot polar bear, or
in transporting polar bear or polar bear parts taken in violation
of the Act.
We are also reviewing ways to enhance the management provisions of
section 101(b) by authorizing the Secretary to initiate the
development of harvest restrictions when the population of a
species declines to ten percent above the depletion level. The
actual implementation of those restrictions would not occur until
the species is at the level of depletion. We are considering a
process that would maintain the integrity of the Native subsistence
exemption while ensuring that a critical regulatory program would
be in place at the point of depletion and not years later.
Initiation of the regulatory process prior to depletion would also
68
draw public attention to the serious decline of the species,
hopefully generating voluntary harvest restrictions that could
avoid depletion altogether. Under the approach we are considering,
the establishment of prescribed regulations that would be made
after public notice and a formal hearing on the record. This
proactive approach would ensure that marine mammals continue to
provide subsistence benefits to future generations of Alaskan
Natives without imposing unnecessary restrictions on these
benefits.
The proposed benchmark of a population size ten percent above the
depletion level would serve only as a mechanism to trigger the
formal rulemaking process for promulgating regulations. If the
depletion level were reached, no take, other than Native
subsistence take, would be authorized and Native subsistence take
would be subject to restrictions imposed by the Secretary's
regulations. These regulations would be reviewed and revised, as
necessary, no less than every six years.
We are also considering proposing amendments to relax restrictions
on exchanges of personal items between Alaska Natives and
indigenous peoples of other circumpolar nations where marine
mammals occur, and allowing Alaska Natives to bring personal items
back into the United States when returning from foreign travel.
Alaska Natives engage in cultural and other exchanges with other
69
Natives, including those from Russia, Canada, and Greenland.
Increased openness with Russia has facilitated reestablishment of
family ties between Russian and Alaska Natives, but provisions in
the Act that prohibit importation have precluded the opportunity
for Alaska Natives to receive gift items from Native peoples from
Russia, Canada, Greenland, and Norway. Further, the Act prohibits
Alaska Natives from taking marine mammal products out of the United
States and then returning with those same items. This problem also
needs to be addressed.
Currently, the Act does not provide for lethal take of polar bears
in defense of life, an omission that could be viewed as a technical
oversight. Lethal takes do occur infrequently. They are currently
investigated on a case-by-case basis and are handled as a matter of
prosecutorial discretion. We are looking at ways to specifically
allow any person to intentionally take a polar bear by harassment
for deterrence purpose and, as a last resort lethally, in defense
of life. The provision would be specific to defense of life and
not to defense of property.
Presently, we are examining our authority to issue permits for
long-term maintenance of rehabilitated but non-releasable marine
mammals. To address this issue, we are looking at ways to clarify
the current permit requirements of section 104 to make clear that
holding facilities must obtain a permit for long-term captive
maintenance of rehabilitated marine mammals that are deemed to be
70
unfit for return to the wild.
He are also exploring ways to provide grants to develop and
implement management agreements with Alaska Natives. The Service
is developing new conservation plans for polar bears, sea otters,
and walrus. Alaska Natives have played, and will continue to play,
an integral role in developing and implementing these plans, and
there is increasing impetus for developing and implementing
management measures with Alaska Natives.
The Service is party to memoranda of agreement with the Alaska Sea
Otter Commission and the Eskimo Walrus Commission. Through a
grants program, Alaska Native organizations could hire professional
biologists and subsistence use specialists that would facilitate
their interactions with Federal and State managers and biologists,
as well as the development and implementation of management
programs. Such professionals could also facilitate development of
conservation education programs and assist in collecting and
disseminating traditional and cultural knowledge to government
scientists.
The success of the North Slope Borough in self-regulating marine
mammal management programs, as demonstrated in their polar bear
agreement with the Inuvialuit Game Commission in Canada, can
largely be attributed to their funding support and maintaining a
professional staff of wildlife biologists, veterinarians, and
10
71
subsistence use specialists.
Lastly, we are looking at the possibility of establishing a new
"Information and Education" program to develop materials to further
public knowledge and understanding of marine mammals and their
habitats. Public interest in marine mammals is at an all-time
high, and there is a need to provide the public with sound
biological information. This effort would help to heighten
awareness of this important need.
Thank you again, Mr. Chairman, for the opportunity to testify these
important issues. I will be pleased to respond to questions.
11
72
STATEMENT OF
JOHN E. REYNOLDS, III, PH.D.
CHAIRMAN
MARINE MAMMAL COMMISSION
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES
COMMITTEE ON MERCHANT MARINE AND FISHERIES
HOUSE OF REPRESENTATIVES
FEBRUARY 10, 1994
Mr. Chairman and members of the Committee:
I am John E. Reynolds, III, Chairman of the Marine Mammal
Commission. It is my pleasure to appear before you this morning.
As requested, I will confine my remarks to issues related to
reauthorization of the Marine Mammal Protection Act other than
the new regime to govern the take of marine mammals incidental to
commercial fisheries.
The Committee specifically requested the Commission's views
with respect to scientific research permits under the Marine
Mammal Protection Act and on the management of marine mammals for
public display. I would also like to comment on issues of
concern to Alaska Natives and the need to reconcile the
provisions of the Marine Mammal Protection Act with our
international responsibilities under the Agreement on the
Conservation of Polar Bears. I shall address issues related to
scientific research first.
Scientific Research
When it passed the Marine Mammal Protection Act in 1972,
Congress recognized that there was inadequate knowledge of the
ecology and population dynamics of marine mammals and realized
that a vigorous research effort would be needed to overcome this
deficiency. After all, it is difficult or impossible to make
wise decisions with incomplete or inaccurate data. The Act
directed the Secretaries of the Interior and Commerce to
undertake a marine mammal research program and authorized the
Secretaries to issue permits allowing the taking and importation
of marine mammals, including those from depleted populations, for
purposes of scientific research.
The Act requires that permits authorizing the taking or
importing of marine mammals for scientific research or other
purposes specify —
(A) the number and kind [e.g. the species, age, and sex] of
animals which are authorized to be taken or imported,
73
(B) the location and manner (which manner must be
determined by the Secretary to be humane) in which they may
be taken, or from which they may be imported,
(C) the period during which the permit is valid, and
(D) any other terms or conditions which the Secretary deems
appropriate.
Such permits also are to specify "the methods of capture,
supervision, care, and transportation which must be observed
pursuant to and after such taking or importation."
Each permit application must be reviewed by the Marine
Mammal Commission in consultation with its Committee of
Scientific Advisors. Also, the Act reguires that notice of each
permit application be published in the Federal Register and the
public be given 3 days to review and comment on the application.
There currently is no provision in the Act for waiving the 30-day
comment period, even when a waiver would be in the best interest
of the marine mammals involved or when unanticipated and possibly
unigue research opportunities would be lost.
The Act was amended in 1988 to set forth additional
reguirements applicable to scientific research permits. The
amendments specify that:
A permit may be issued for scientific research purposes only
to an applicant which submits with its permit application
information indicating that the taking is reguired to
further a bona fide scientific purpose and does not involve
unnecessary duplication of research. No permit issued for
purposes of scientific research shall authorize the killing
of a marine mammal unless the applicant demonstrates that a
non-lethal method for carrying out the research is not
feasible. The Secretary shall not issue a permit for
research which involves the lethal taking of a marine mammal
from a species or stock designated as depleted, unless the
Secretary determines that the results of such research will
directly benefit that species or stock, or that such
research fulfills a critically important research need.
The legislative history of this provision explains that the
addition of the reguirement that research further a bona fide
scientific purpose was "not intended to substantively change the
criteria for granting scientific permits" but was merely intended
to codify existing regulations. Nevertheless, including this
reguirement in the statute focused attention on the determination
that proposed research be bona fide . While the reguired finding
may not have changed, the heightened scrutiny given scientific
research applications by reviewing agencies as a result of the
1988 amendment has no doubt increased the paperwork burden placed
74
on both the applicants and the agencies.
Since enactment of the 1988 amendments, many scientists,
including members of the Commission and its Committee of
Scientific Advisors, have complained that it takes longer than it
should and more information than necessary is reguired to obtain
permits for scientific research. In response to these concerns,
the Commission convened two workshops in 1993 to discuss the
perceived problems and to identify possible solutions. Related
factors noted by workshop participants included the following:
(1) instructions to applicants are overly long, unclear, and not
linked to the statutory and regulatory findings that must be
made; (2) implementation of the requirement that research be
" bona fide " has been more rigorous than was originally intended
by Congress; (3) even for experienced scientists, it is not
always possible to reasonably estimate in advance how and how
many animals may be taken, particularly by harassment, in the
course of certain types of research; (4) there is no mechanism to
expedite permit issuance when necessary to (a) protect or
otherwise benefit a species, population, or individual marine
mammal which is in jeopardy, or (b) enable researchers to respond
to the presence of uncommon animals or other unanticipated
research opportunities that would otherwise be lost; (5) some
permits contain unreasonably restrictive conditions and demanding
reporting requirements; (6) all research permit applications are
processed, and the research itself regulated, the same regardless
of the degree and type of take or the status of the marine
mammals involved; and (7) there is no way to authorize possible
harassment of endangered, threatened, or depleted marine mammals
in the course of making documentary films or taking photographs
for either educational or commercial purposes.
Workshop participants identified several actions that could
be taken to address these problems. They suggested specific
changes to the permit application instructions currently used by
the National Marine Fisheries Service that would make them more
understandable to researchers, thereby reducing the possibility
that incomplete or otherwise deficient applications would be
submitted. In this regard, it might be helpful if Congress were
to take steps to encourage the National Marine Fisheries Service
and the Fish and Wildlife Service, in consultation with the
Marine Mammal Commission and its Committee of Scientific Advisors
on Marine Mammals, to develop and make available to the
scientific community clear and concise instructions for preparing
and submitting applications for permits to take marine mammals
for purposes of scientific research. Further, it would be useful
if Congress were to direct the Services to institute procedures
whereby they would advise applicants, within 30 days of receiving
an application, as to whether the application contains sufficient
information to make the required determinations and, if not,
precisely what additional information is required.
75
While processing times for permits have improved over the
past year, the Commission believes that further improvement is
possible and would be beneficial. For the 30 permits issued by
the National Marine Fisheries Service and the 3 permits issued by
the Fish and Wildlife Service in 1993, it took, on average, over
three months to complete agency review once the application had
been determined to be complete. The Commission believes that,
even with a mandatory 30-day public comment period, the Services
should be able to complete most reviews within 60 days. In this
regard, it might be useful if the committee were to instruct the
Services to make a concerted effort to meet this goal. If, by
the end of 1995, the average time between receipt of a complete
application and issuance of a permit for scientific research
exceeds 60 days, the Services should be asked to (1) report as to
why they have been unable to meet this objective and (2) suggest
changes that would facilitate processing.
Another possible way to speed up review of applications for
scientific research permits would be to authorize the Secretaries
of Commerce and the Interior to exempt certain carefully selected
categories of research, through regulation, from the notice and
comment reguirement and perhaps other existing permit
reguirements (e.g. , the reguirement that all permits specify the
number of animals authorized to be taken) . It would seem, for
instance, that expedited review and issuance of permits would be
appropriate in cases where, based upon past experience, it is
clear that the research would have negligible effects on both
individual and population health and welfare.
In this context, it is important to keep in mind that the
likelihood and significance of possible effects may vary
depending upon the species being studied, the type of aircraft,
surface vessel, or other eguipment being used, and the experience
and expertise of the researcher, as well as the nature of the
activity itself. For example, while there is no doubt that
certain researchers have learned through experience how to
approach certain species of whales in certain areas without
disturbing them, it does not necessarily follow that
inexperienced researchers can carry out the activity with a
similar low likelihood of disturbance or that the same type of
approach necessarily would have the same low probability of
disturbing other species or the same species in different
settings. Similarly, it does not follow that disturbing,
handling, or tagging 100 individuals necessarily would have the
same effect on every species or population — e.g. , endangered
Hawaiian monk seals, threatened Steller sea lions, and much more
numerous northern elephant seals and California sea lions.
Also, the process for authorizing the importation of
specimen material for scientific research might be simplified by
authorizing the Secretaries of Commerce and the Interior to
exempt, through regulation, such importation from the Marine
76
Mammal Protection Act's notice and comment requirement when
certain conditions are met. These conditions could include prior
notification of intent to import specimens, a statement of
scientific purpose, appropriate certification that the materials
were collected and will be exported in accordance with the laws
of the country of origin and any other applicable authority, and
notification of what specimen material was actually imported.
As noted above, there has been some confusion regarding
implementation of the requirement enacted in 1988 that only
research for bona fide scientific purposes be authorized. While
the National Marine Fisheries Service is trying to alleviate this
problem through adoption of a regulatory definition of the term,
it might be useful if Congress, in report language, were to
provide additional guidance. In this regard, the Committee might
indicate its intention that the term bona fide , as used in
section 104(c)(3) of the Act, be given its common definition,
i.e. that it refers to an application made in good faith without
fraud or deceit, an application made with earnest intent, and a
scientific purpose which is nether specious nor counterfeit.
Activities other than research that have been conducted
under the authority of scientific research permits in the past
include documentary film making and commercial photography.
While it is clear that some filming and photography of marine
mammals can be done in ways not likely to harass the animals,
approaches that do cause harassment may, in other instances be
necessary. The Commission believes that these activities can
serve extremely useful educational functions. Unfortunately, the
Act, as it exists, provides no straightforward way to authorize
such taking, except through formal rulemaking, and then only for
non-depleted species and populations.
If only non-depleted marine mammals were involved, film
makers and photographers could seek a waiver of the moratorium.
But, this process is unnecessarily complex and expensive in light
of the type and level of taking that would be involved. It also
should be noted that, as with public display permits, waivers may
not authorize the taking of depleted marine mammals.
Also, filming and photography, while they can serve to raise
public awareness of and appreciation for marine mammals, do not
fit under the permit authority for enhancement added to the Act
in 1988. Because there is no available alternative, scientific
research permits have been used to authorize takings which occur
while photographing or filming marine mammals.
The National Marine Fisheries Service has noted that there
have been some problems associated with allowing commercial
filming and photography under scientific research permits. At
times, the desire to obtain valuable footage or pictures may
create an incentive to approach animals in ways not necessarily
77
consistent with the authorized research. The Service believes
that in some cases scientific research permits may have been used
"as a subterfuge for conducting unauthorized commercial
activities," and in its proposed regulations, would place strict
limitations on when "marketable products" resulting from
permitted scientific research could be sold.
The Commission concurs that only bona fide research,
independent of any commercial or recreational considerations,
should be conducted under scientific research permits. Under the
proposed rule some photographs and films obtained by researchers
could still be sold or otherwise disseminated, but only in
limited instances. In some instances these limitations make
sense; in others they may not.
The Commission also believes, however, that the problem
could be overcome by amending the Act to enable the Secretaries
of Commerce and the Interior to issue permits authorizing the
taking of marine mammals, including depleted species, incidental
to filming for either educational or commercial purposes under
certain conditions (e.g., when the effects on individuals and
populations clearly would be negligible) . Thus, photography
would continue to be allowed without permit where no harassment
takes place, incorporated under scientific research permits when
appropriate, and authorized as an independent activity when
impacts would be negligible.
Another major problem with the existing statutory scheme for
authorizing scientific research permits is the lack of any means
for waiving the 3 0-day public notice and comment requirement. In
some situations the Secretaries' inability to expedite permit
issuance has delayed research necessary to detect, understand, or
alleviate known or possible threats to marine mammals. In other
instances, unique or unanticipated research opportunities have
been lost because a permit could not be issued quickly enough.
To address these problems, the Commission believes that it
would be desirable to amend the Act to authorize the Secretaries
to issue permits before the end of the 30-day public comment
period when delaying initiation of research could result in harm
to a species, population, or individual marine mammal, or result
in loss of unique research opportunities that could not
reasonably have been foreseen. As with the parallel provision of
the Endangered Species Act, which authorizes waivers of the
public comment period for permits when delay would threaten the
health or life of an endangered animal, the Secretary should be
required to publish a notice of such a waiver, and the reasons
for it, in the Federal Register within 10 days of permit
issuance.
The Commission believes that the other problems with the
scientific research program identified by the workshop
78
participants, e.g., reporting requirements placed on permittees,
can be addressed administratively.
Another issue related to scientific research is the proposal
that the Marine Mammal Protection Act be amended to prohibit
invasive and lethal research on marine mammals unless it will
directly benefit the species in the wild.
While the Commission agrees that invasive and lethal
research techniques should not be used needlessly, we strongly
believe that, in addition to research designed to benefit wild
marine mammal populations, use of lethal or invasive techniques
might at times be necessary and appropriate when conducting some
types of basic research. In all instances, however, the existing
statutory provisions would be applicable to ensure that such
techniques will not be used when non-lethal or less invasive
methods are practicable.
Public display
In testimony presented to the Senate Committee on Commerce,
Science, and Transportation on 28 July 1993, the American
Association of Zoological Parks and Aquariums, representing the
public display industry, and the Humane Society of the United
States, representing several environmental and animal welfare
organizations, proposed several amendments to the public display
provisions of the Act. The Commission would like to comment on
the principal amendments advocated by these groups.
The American Association of Zoological Parks and Aquariums
and the Humane Society each thought changes were needed in the
current jurisdiction for captive marine mammals. The American
Association of Zoological Parks and Aquariums believes that all
authority for captive marine mammals should be vested in the
Animal and Plant Health Inspection Service. The Humane Society
believes that all authority should be placed with the National
Marine Fisheries Service. While not explicit in its testimony,
it may be that the Humane Society is advocating that the National
Marine Fisheries Service be given authority over all captive
marine mammals including those that are otherwise under the
jurisdiction of the Fish and Wildlife Service.
Currently, jurisdiction over most captive animals, including
marine mammals, is vested in the Animal and Plant Health
Inspection Service under the Animal Welfare Act. In addition,
section 104(c)(1) of the Marine Mammal Protection Act, which
requires marine mammal permits to specify "the methods of
capture, supervision, care, and transportation which must be
observed pursuant to and after such taking or importation,"
confers jurisdiction over those captive marine mammals held under
permit to the National Marine Fisheries Service and the Fish and
Wildlife Service. Also, the Marine Mammal Protection Act's
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definition of "take" does not limit the occurrence of a take to
the wild. Since 1979, when they entered into a memorandum of
agreement, the three agencies have recognized shared jurisdiction
over captive marine mammals under the two statutes.
A recent district court ruling ( Mirage Resorts v. Franklin ) ,
however, has placed in doubt the authority of the National Marine
Fisheries Service and the Fish and Wildlife Service over captive
marine mammals. The court concluded that Congress, in enacting
the Marine Mammal Protection Act, intended the Act "only to apply
to marine mammals in the wild." Consistent with this view, the
court ruled that the National Marine Fisheries Service lacks
authority to regulate swim-with-the-dolphin programs, "as such
programs do not involve a 'taking' of the marine mammals from
their natural habitat in the wild." Broadening the applicability
of its decision, the court also found the Service's position that
its "regulating authority covers the purchase, transportation,
and continuous care of previously captured animals [to be]
untenable. "
In contrast, the court found that the Animal and Plant
Health Inspection Service has broad authority over captive marine
mammals under the Animal Welfare Act. In this regard, the court
ruled that nothing in its order "should be construed as a
prohibition on the Animal and Plant Health Inspection Service
from issuing regulations regarding [swim-with-the-dolphin]
programs. "
Another aspect of the Mirage ruling needs to be called to
the attention of this Committee as it considers amendments to the
Marine Mammal Protection Act. The ruling may have unforeseen
conseguences for facilities seeking to transport, purchase, and
sell captive marine mammals. Under section 102(a)(4) of the Act
it is unlawful for any person to transport, purchase, sell, or
offer to purchase or sell any marine mammal unless it is
authorized pursuant to another provision of the Act, e.g. under a
public display permit. If, as the court has stated, the Service
is without authority to regulate transportation, purchases,
sales, or anything other than the removal of animals from the
wild, the Service not only would be precluded from prohibiting
such activities, it would be precluded from authorizing them.
That is, there may be not any mechanism to overcome the statutory
prohibition against transporting, purchasing, and selling marine
mammals, if, as the court has ruled, the Service has no
jurisdiction to authorize such activities. Even if it does
nothing else to clarify agency authority over captive marine
mammals under the Marine Mammal Protection Act, Congress should
give its attention to this de facto prohibition on transporting,
selling, and purchasing marine mammals.
As to the underlying guestion of which agency or agencies
should be given jurisdiction over captive marine mammals, the
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Commission believes that split jurisdiction has, for the most
part, worked well. The Animal and Plant Health Inspection
Service has broad authority for and experience with the care and
maintenance of captive animals. As such, its view of captive
maintenance issues is more likely to be influenced by policy
concerns not specific to marine mammals. The National Marine
Fisheries Service and the Fish and Wildlife Service, on the other
hand, have a narrower focus, with greater expertise with respect
to marine mammal biology, physiology, and behavior and the
specific needs of these animals.
The Animal and Plant Health Inspection Service, through
regulation, has established generic standards setting minimum
reguirements that all licensed facilities maintaining captive
marine mammals must meet. Among other things, those standards
address the physical environment of captive animals (e.g.
materials, space, water guality, temperature, ventilation, etc.),
the adeguacy of the facility's staff and veterinary care program,
and the transportation of animals. The Animal and Plant Health
Inspection Service also has a corps of veterinarians who
periodically conduct inspections of marine mammal facilities to
ensure compliance with the standards. Although the existing
standards may need updating to reflect new information on care
and maintenance of marine mammals, the existence of a set of
enforceable standards is extremely valuable.
In contrast, the National Marine Fisheries Service and the
Fish and Wildlife Service, through their review of specific
permit applications, provide closer scrutiny of individual
reguests to obtain and maintain marine mammals. Also, inasmuch
as their review is tailored to individual circumstances, the
National Marine Fisheries Service and Fish and Wildlife Service
are able to respond more quickly to specific or novel situations.
The Animal and Plant Health Inspection Service, on the other
hand, may have to go through a lengthy rulemaking to amend its
applicable regulations. For example, the National Marine
Fisheries Service has filled a void in the Animal and Plant
Health Inspection Service regulations by adopting facility- or
program-specific conditions for the use of marine mammals in
interactive displays.
Also, the National Marine Fisheries Service and, to a lesser
degree, the Fish and Wildlife Service, through reporting and
other requirements, track the condition and whereabouts of
individual marine mammals maintained under permits. For example,
under the National Marine Fisheries Service's permit conditions,
facilities are required to mark marine mammals so that they are
identifiable, to provide annual reports describing the health and
condition of animals, to report mortalities and provide necropsy
reports, and to obtain authorization to sell or transfer animals.
These records are maintained in a computerized data base.
Without these means of monitoring the whereabouts and identities
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of marine mammals, and for tracking transfers, the chances that
animals could be substituted for other animals or could be housed
in sub-standard facilities are increased. Likewise, there would
be no data base for estimating survival rates of marine mammals
in captivity. The Animal and Plant Health Inspection Service has
no comparable inventory and tracking system.
Another consideration weighing in favor of joint authority
for captive marine mammals is differential coverage under the two
statutes. The Animal Welfare Act applies to all animals held by
licensed facilities in the United States. The Marine Mammal
Protection Act applies to all facilities holding marine mammals
under permit. The Animal Welfare Act governs the care and
maintenance of "pre-Act" marine mammals not covered by the Marine
Mammal Protection Act. On the other hand, the Marine Mammal
Protection Act applies to foreign facilities maintaining marine
mammals under U.S. permits and to domestic facilities that,
because of compliance problems, may have lost their exhibitors
licenses.
In sum, the responsibilities of the three agencies with
authority for captive marine mammals are largely complementary.
The interagency agreement works working well and there is little
duplication of effort under the two statutes. Therefore, the
Commission recommends that Congress take whatever steps are
necessary to clarify that jurisdiction over captive marine
mammals is intended to be provided under both the Animal Welfare
Act and the Marine Mammal Protection Act.
Both the American Association of Zoological Parks and
Aquariums and the Humane Society also advocate an amendment with
respect to interactive display of marine mammals such as swim-
with-the-dolphin programs and petting pools. The American
Association of Zoological Parks and Aquariums supports an
amendment to authorize interactive exhibition of animals, while
the Humane Society believes that all direct contact between the
public and captive marine mammals should be prohibited.
The legislative history of the Act recognizes that there is
a diversity of public display facilities and calls upon the
Secretary to recognize and foster this diversity. Further,
Congress has never seen a need to define what constitutes "public
display" other than to require that an acceptable facility offer
a program for education or conservation that meets industry
standards and that the facility be open to the public on a
regularly scheduled basis. Within this framework several types
of interactive displays can be and have been authorized.
The Commission believes that interactive displays can
enhance educational opportunities and supports retention of
agency discretion to authorize such displays in appropriate
instances. There should not, however, be a blanket authorization
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given for any type of interactive display that a facility would
like to establish. Rather, the Secretary should be given the
necessary latitude to authorize such interactions based upon a
careful analysis of the potential risks and benefits of the
proposed interactive display. In this regard, there may be a
need to clarify that, in authorizing interactive displays, the
Secretary should weigh not only the potential risks to the health
and welfare of the animals involved, but to public safety as
well.
The American Association of Zoological Parks and Aquariums
proposed an amendment to allow marine mammals from depleted
populations to be imported for purposes of public display if the
animals were held in captivity prior to the depletion designation
or if the animals are captive born.
At present, the only permits that may be issued to authorize
the taking or importation of depleted marine mammals are those
for scientific research or enhancement. An exception from the
general prohibition on importing depleted marine mammals for
other purposes, e.g. public display, is made by section 102(d)(1)
for marine mammals that were imported into the United States
prior to publication of a proposed depletion finding. The
proposed amendment would expand the exception to allow
importation of a depleted marine mammal if the animal were
removed from the wild prior to issuance of a depletion finding or
is the progeny of a marine mammal removed from the wild prior to
issuance of a depletion finding.
There are several potential problems with this proposed
amendment. First, the rationale for the amendment seems to be
that the original taking did not significantly contribute to
causing depletion of the population and, therefore, that those
who hold such marine mammals should not be penalized by
foreclosing the opportunity to use or sell the mammal for
purposes of public display. This is not necessarily the case.
In some instances, the removal of animals for captive maintenance
may have contributed to depleting the population.
Second, such an amendment should only be considered if there
were an acceptable international system for identifying and
tracking individual marine mammals. Without such a system,
animals could be removed from the wild, "laundered" through
foreign facilities or passed off as the progeny of pre-depletion
animals, and imported to the United States for public display.
Third, whether or not animals were held in captivity prior
to issuance of a depletion finding, it may be appropriate to
limit uses of such animals to those designed to help rebuild the
depleted stock. In this regard, it should be noted that
importation of marine mammals from depleted stocks is permissible
for enhancement purposes and that public display of such animals
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may be authorized if it is incidental to, and will not interfere
with, the underlying enhancement purpose.
An additional problem with this proposal is tying the
exception to issuance of a final depletion finding. While the
Commission does not support this proposed amendment in any form,
at the absolute minimum, it should be revised along the lines of
section 102(d)(1) of the Act, setting publication of the proposed
depletion finding as the cutoff point by which the marine mammal
must be in captivity. Without such a requirement, there is a
risk that the publication of a proposed depletion finding will
set off a rush to capture animals from that stock before the
determination is final.
The American Association of Zoological Parks and Aquariums
also advocates exempting Marine Mammal Protection Act permitting
actions from the requirements of the National Environmental
Policy Act.
By and large, marine mammal permitting actions do not have
significant environmental impacts. As such, the National Oceanic
and Atmospheric Administration and the Fish and Wildlife Service
have "categorically excluded" the issuance and modification of
these permits from the general National Environmental Policy Act
provisions requiring preparation of an Environmental Impact
Statement (EIS) and/or an Environmental Assessment (EA) .
Pursuant to the categorical exclusions, most permits may be
issued without conducting an assessment of their impacts.
Some permits, however, may fall within exceptions to the
categorical exclusions because of the scope, novelty,
uncertainty, or cumulative impacts of the requested activities.
In such instances, preparation of an EA or an EIS is required.
While some may view this requirement as a needless obstacle to
permit issuance, preparation of such a document in those
circumstances serves a valuable function. The required analyses
not only assess the potential impacts of proposed actions, but
identify alternatives that may be environmentally preferable.
It should also be noted that compliance with the National
Environmental Policy Act, at least for most permits, is not very
burdensome. Of the hundreds of permits issued by the National
Marine Fisheries Service, only a handful have required
preparation of an environmental document — and these generally
were for relatively large scale activities, e..g. the Heard Island
sound transmission experiment, the Minerals Management Service's
bowhead whale research program, the swim-with-the-dolphin
program, and a proposal to capture up to 100 and remove 10 killer
whales from Alaska. Only two permits issued by the Fish and
Wildlife Service have prompted the preparation of an EA and none
have required the preparation of an EIS.
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While the amendment sought by the American Association of
Zoological Parks and Aquariums would clear up any uncertainty
about the applicability of the NEPA requirements to individual
permits, it would do so at the expense of the benefits that
result from NEPA analyses in exceptional circumstances. A better
approach would be to strengthen the system used by the Services
to identify when exceptions to the categorical exclusions are
present.
The Humane Society supports an amendment to prohibit further
captures of wild marine mammals for public display purposes. The
Humane Society contends that there are already sufficient numbers
of certain marine mammals in captivity (e.g. Tursiops) to furnish
the needs of the public display industry through captive
breeding. For some pinniped species kept in captivity, the
demand for display animals can be met by captive breeding or by
stranded animals that are unreleasable to the wild.
The proposed amendment, however, is overly broad. While the
demand for public display specimens from some species can
probably be met from captive breeding, a reduction in the size of
the Navy's marine mammal program, and from unreleasable stranded
animals, this is not universally the case. The proposed
amendment would have the practical effect of limiting public
display opportunities to those species now commonly held in
captivity or prone to stranding. Even for some commonly held
species, the captive population may not be sufficiently large to
allow breeding in perpetuity without a periodic infusion of
genetic variability from wild populations.
A more pragmatic approach would be to amend the Marine
Mammal Protection Act to require the Secretary, when reviewing
applications for public display permits to consider whether there
are practical alternatives to the removal of animals from the
wild. Only in those cases where it is reasonably demonstrated
that taking animals from a wild population is necessary should
removals be authorized.
The Humane Society also seeks to amend the Act to prohibit
the intentional feeding of marine mammals in the wild.
The Marine Mammal Commission has long held the view that the
feeding of marine mammals in the wild may be harmful and
constitutes a prohibited taking under the Act. Among the
considerations that led the Commission to its conclusion are that
feeding programs may (1) cause animals to be attracted to fishing
boats and other vessels, increasing the likelihood that they will
become entangled in fishing gear, be struck by vessels, or be
shot, poisoned, or fed foreign objects; (2) cause animals to
become dependent on such food sources and become less able to
find and catch natural prey when feeding is discontinued; (3)
alter migratory patterns, thereby subjecting animals to food
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shortages or inhospitable conditions that otherwise would be
avoided; (4) condition animals to expect food from people,
possibly causing aggressive behavior when food is not offered;
and (5) expose animals to and make them more susceptible to
disease.
In 1991, the National Marine Fisheries Service issued a rule
to include feeding wild marine mammals within the regulatory
definition of taking. While this rule was successfully
challenged in district court, that finding was overturned by the
Fifth Circuit Court of Appeals in October 1993. As such, there
no longer appears to be a need for such an amendment.
Another recent case ( United States v. Hayashi) , which also
looked at the issue of taking by harassment under the Marine
Mammal Protection Act, should be called to your attention. In
this case, the Ninth Circuit Court of Appeals overturned the
conviction of a fisherman for allegedly taking porpoises by
shooting at them to deter them from interacting with his gear and
catch. For the reasons noted below, the court's ruling is
problematic.
Noting that the term "harass" was not defined in the statute
or by applicable regulation, the court ascertained its meaning by
examining the other elements of taking (hunting, capturing, and
killing) included in the Act's definition of "take." Inasmuch as
those elements all involve "direct, sustained, and significant
intrusions upon the normal, life-sustaining activities of a
marine mammal," the court concluded that "'harassment,' to
constitute a ' taking' .. .must entail a similar level of direct and
sustained intrusion." Reviewing the facts of the case, the court
concluded that shooting at the porpoises did not have the
significance or sustained effect to be a taking under the Act and
reversed the conviction for insufficiency of evidence.
A dissenting opinion took issue with the majority's
reasoning and the scope of the ruling. The dissenting judge
believed that the majority, in order to overturn a conviction it
thought unreasonable, had unjustifiably restricted the breadth of
the Act. The dissenting judge found "no source in the language,
structure, or legislative history of the Act" to support "the
gloss imposed by the majority" on the taking definition.
Further, the judge thought that the majority's cramped
construction of the term "taking" would unjustifiably "restrict
most aspects of the scheme envisioned by Congress for the
protection of marine mammals."
Concerned with the application of the Hayashi ruling to
other factual settings and the implications of the ruling on its
ability to enforce the Act effectively, the Government, on 9
November 1993, petitioned the Court of Appeals to rehear the
matter. While not objecting to the reversal of the conviction on
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other grounds, the Government took issue with the court's
narrowing of the "take" definition. While it is hoped that the
court will reconsider its opinion, this is an issue that bears
watching by Congress. If the holding limiting the definition of
harassment to direct and sustained intrusions on marine mammals
is left intact, legislation to include lesser forms of
disturbance and molestation under the definition would be
warranted.
Alaska Native Issues
From our discussions with representatives of Alaska Native
groups it appears that they are primarily concerned with three
issues related to reauthorization, other than the proposed regime
to govern the taking of marine mammals incidental to commercial
fishing operations. First, they seek to ensure that the current
exemption allowing the taking of marine mammals for subsistence
and handicraft purposes is maintained. Second, Native
communities would like to build on current efforts to enhance
cooperation between the Alaska Natives and the Fish and Wildlife
Service in managing polar bear, sea otter, and walrus populations
in Alaska. Third, they would like to have the Act amended to
allow the importation of marine mammal products that: a) were
exported from the United States in conjunction with personal
travel; b) were acquired by an Alaska Native outside the United
States as a gift from a Native inhabitant of Russia, Canada, or
Greenland; or c) are being imported by Native inhabitants of
Russia, Canada, or Greenland in conjunction with their personal
travel or as gifts for Alaska Natives.
The Commission supports retention of the existing exemption
for Alaska Natives. As was recognized by Congress when the Act
was passed in 1972, traditional uses of marine mammals by Alaska
Natives should be protected and given primacy over other uses.
Although there have been problems from time to time with the
current system, Native communities have worked hard to eliminate
them.
The Commission believes that cooperative efforts between
appropriate governmental agencies and Native groups provide the
best long-term solution for managing the take of marine mammals
for subsistence and handicraft purposes. Native communities have
expressed a willingness to work with the Service to ensure that
levels of take do not adversely affect the populations.
Informal discussions with the Service indicate general
support for this approach. However, the Service has suggested
that more explicit authority is needed to enable it to make
grants or provide other financial assistance to Alaska Natives
participating in such cooperative management activities. While
the Commission agrees that such activities should be funded, it
does not believe that a substantive amendment is needed, although
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it may be useful to note this in report language.
Section 110 of the Act authorizes the Secretary to make
grants or otherwise provide financial assistance to any Federal
or State agency, public or private institution, or other person
for the purpose of undertaking research relevant to the
protection and conservation of marine mammals. In addition, the
Secretary has broad authority under section 112(c) to enter into
contracts, leases, cooperative agreements, or other transactions
as may be necessary to carry out the purposes of the Act. There
can be little doubt that financial assistance to Alaska Natives
to develop cooperative management plans and to participate in
cooperative management activities to protect and conserve marine
mammals can be provided under these provisions.
Further in this regard, the Commission believes that the
ongoing development of conservation plans for the polar bear, sea
otter, and walrus, provide the appropriate context in which to
identify cooperative efforts that should be undertaken and to
assess and justify needed funding.
The amendment to authorize importation of certain marine
mammal items is similar to one introduced by Senator Murkowski in
the last Congress. That proposed amendment would have 1)
authorized Alaska Natives to import into the United States gifts
containing marine mammal parts received from Natives of other
countries; 2) allowed anyone who legally possesses a marine
mammal product in the United States to obtain permission to
export, and subseguently re-import, the item; and 3) authorized
the issuance of permits for the temporary importation of marine
mammal parts into the United States if the importation is
associated with an organized cultural exchange.
Such an amendment would likely have little effect on marine
mammal populations, but would have important benefits to Alaska
Natives by fostering relations among circumpolar Natives.
Senator Murkowski" s bill contained most of the safeguards
necessary to prevent abuses of the proposed exceptions. With a
few minor modifications, enactment of such an amendment is
supported by the Commission.
The Murkowski bill would have required an Alaska Native
importing a gift containing marine mammal parts to register that
item with the Secretary. Consideration should also be given to
requiring other Alaska Natives to whom such items might be
transferred to re-register the item. Also, while the bill
implied that items to be exported and re-imported into the United
States must be legally possessed by the owner, this should be
made an explicit requirement of the provision.
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Agreement on the Conservation of Polar Bears
Committee staff have been provided with copies of a report
prepared for the Commission on reconciling the legal mechanisms
to protect and manage polar bears under domestic statutes and the
Agreement for the Conservation of Polar Bears. That report
suggests several amendments that could be made to the Marine
Mammal Protection Act and the Agreement to bring them into full
conformance. Among other things, Congress might consider
amending the Act to prohibit using aircraft or large motorized
vessels to take or assist in the taking of polar bears, to
prohibit hunting of polar bear cubs or females with cubs or in
denning areas, and to strengthen protections for polar bear
habitat. Among other things, habitat protection under the Marine
Mammal Protection Act could be enhanced by including the term
"harm, " including harm that results from habitat degradation or
modification, within the definition of "take."
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TESTIMONY OF
THE AMERICAN ZOO AND AQUARIUM ASSOCIATION
AND
THE ALLIANCE OF MARINE MAMMAL
PARKS AND AQUARIUMS
PRESENTED BEFORE
THE SUBCOMMITTEE ON ENVIRONMENT AND NATURAL
RESOURCES
ON
10 February 1994
90
TESTIMONY OF THE
AMERICAN ZOO AND AQUARIUM ASSOCIATION
AND THE ALLIANCE OF MARINE MAMMAL PARKS AND AQUARIUMS
The 162 accredited members of the American Zoo and Aquarium Association ("AZA")
and the 3 1 members of the Alliance of Marine Mammal Parks and Aquariums ("Alliance")
represent zoos, aquariums and scientific research facilities which further the goals and objectives
of marine mammal conservation through the public display of, and research regarding, marine
mammals. In 1992, over 115 million people visited Alliance and AZA facilities. The Alliance
and the AZA strongly support the Marine Mammal Protection Act ("MMPA") and appreciate
this opportunity to share information about our members' educational, research, and stranding
rescue programs and to discuss the MMPA.
I. The Public Display and Scientific Re search Community
Contributes to Marine Mammal Co nservation.
A. Education .
To the millions of people who visit our facilities, we offer an otherwise unattainable
learning opportunity. Millions of people walk away from our facilities with a strong and
determined interest in assuring that marine mammals are safe and protected in the wild. Visitors
learn about the importance of conservation, responsible human behavior, principles of ecology,
animal communication, and natural behaviors.
Zoological parks and aquariums serve as learning centers for the 1 1 5 million people who
visit our facilities every year. Eight million schoolchildren visit zoos and aquariums as part of
their school year curriculum, and another 2 million participate in outreach programs. Thirteen
million adults and children take part in formal and informal education programs. Another 8-9
million will have the opportunity this year alone to benefit from a new and progressive
educational satellite television series. Using cable television one facility aired eight programs
during the 1992-93 school year which featured live host educators, up close footage of marine
mammals, interviews with marine mammal experts and the opportunity for students to ask
questions using a toll free number. In addition to these programs, 25,000 teachers are given in-
service training by zoos and aquariums each school year.
AZA accredited zoos and aquariums also conduct international training programs for
zoologists and wildlife managers, support local education programs, and provide fellowships,
internships, and student grants. They also donate their time, materials and equipment to
conservation education projects in developing countries. In 1990-1991, AZA member
institutions initiated or supported 45 educational programs in 24 nations worldwide.
91
An October, 1 992 nationwide poll by the Roper Organization shows the public is in near
unanimous agreement (92%) that marine life parks play an important role in educating the public
about marine mammals and environmental conservation. Significantly for the cause of marine
mammal conservation, 86% feel if the public learns more about marine mammals, they are more
likely to become concerned about marine mammal conservation.
The results of a 1992 Canadian poll paralleled the Roper survey. Eight often people
surveyed by Decima Research described their visit to an aquarium as educational.
AZA and Alliance zoological parks and aquariums open to the public typically have
professional educators on staff. Exhibit graphics are designed in cooperation with these
professionals. Trained presenters answer the questions we know from experience our guests will
raise based on visitor research. Habitat themes are enhanced through interpretive graphics,
illustrated guidebooks, and narrated programs, to name a few. High tech computer simulations
and video presentations augment educational messages. Surveys and studies of structured
classroom groups back up the hypothesis that contact with live animals improves learning and
retention. Above and beyond models and preserved specimens, contact with live animals
improves attitudes towards them. Visitors to zoos and aquariums to see whales and dolphins
should be viewed as a "link in a chain of learning."
Visitors to AZA and Alliance facilities begin learning the moment they enter. For many
people, visiting an AZA or Alliance facility is often their first and only experience with marine
mammals. This experience, coupled with the unique educational materials they see, instills in
visitors an awareness of ecological and conservation issues, not only about marine mammals, but
also about invertebrates, sharks, fish, turtles, birds, oceanography, coral reef ecology, endangered
species and more.
At some facilities, graphics and narrated presentations are supplemented by
demonstrations in which a teacher discusses animal behavior while trainers help the animals
demonstrate the behavior.
In addition to our programs for the general public, most AZA and Alliance members offer
specially designed educational programs prepared by experienced teachers. Programs are offered
for the blind, students who speak foreign languages, gifted students, preschoolers, autistic
children, and teachers and professors at the elementary, undergraduate and graduate levels, as
well as adults of all ages.
Document nil I J
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For schools which cannot bring their students to us, some AZA and Alliance members
have developed auditorium programs and other outreach programs. We often send a curriculum
aid packet in advance of the trip to assure that the educational benefits of the visit are optimized.
Outreach programs are not confined to the communities in which Alliance and AZA
facilities are located. Educational material available by mail include curriculum guides, activity
packets, educational posters, flashcards, illustrated information booklets, fact sheets, and
educational videos. Alliance and AZA members are working with the National Education
Association, the National Science Teachers Association, and the National Marine Educators
Association to publicize these programs.
Every month, hundreds of letters from school children arrive at our zoos and aquariums.
Ashley, from Connecticut, writes "I would like to help save the whales, but in order for me to do
that I need you to help me. Please tell me how I can help." Brandi from Ohio, tells us "When I
grow up I want to be a marine biologist."
After a week's course in Florida to learn about marine mammals, students from Denver
organized a slide show for their English and social studies classes calling for a tuna boycott to
protect dolphins.
The California State Superintendent of Public Instruction wrote another public display
facility saying he was particularly impressed with their "curriculum materials that integrate the
academic disciplines of mathematics, science and social science."
One parent accompanying her child to a park commented that "close contact with
dolphins makes the whole issue come alive for (children). Protecting wildlife becomes more real
and therefore encourages more effort and activism."
The Education Program Coordinator of the Hawaiian Humane Society complimented
another marine life park on its contributions to seminars for local educators on "Animal
Education Programs."
These comments are typical of the positive public response to the programs offered by
AZA and Alliance members.
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Document »52 13
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B. R esearch-
Research is also an essential element of the program at zoos and marine mammal parks
and aquariums. Much of what is known about marine mammal biology, physiology,
reproduction and behavior results from scientific research conducted by public display facilities.
Generally, research by Alliance and AZA members falls into two categories -- onsite
projects and field research.
On-site projects are often aimed at improving animal husbandry knowledge including
health information, diet and reproductive biology. This type of research continues to assure that
our marine mammals are housed in the best-designed habitats.
Captive breeding programs are also implemented at AZA and Alliance facilities as part of
a more holistic effort to preserve species in their natural habitats. Conservation of the world's
wildlife and its habitat is the highest priority of AZA. The association's conservation activities
were initiated with the development of the Species Survival Plan (SSP) in 1981 . The SSP now
manages cooperative breeding programs for 64 species. The Marine Mammal Taxon Advisory
Group (TAG) was recently formed to prioritize marine mammal species for captive propagation
and recommend species for which new studbooks and SSPs should be developed.
The Marine Mammal TAG is composed of a diverse group of experts including
representatives from other conservation organizations, field biologists and zoological
professionals. This insures that the best informed recommendations on captive propagation
management will be made. The designation of priority species for captive breeding is based on
captive population size, available space for propagation, breeding success, status in the wild,
genetic viability of the captive population, and ultimately, the long range outlook for enhancing
or reestablishing native populations in the wild.
The second category of research is field research. Findings are presented at professional
meetings and then published in scientific journals. In this way, our research benefits
government, environmental and conservation groups throughout the world.
In the past five years, Alliance and AZA members have spent over $20 million on marine
mammal research. Over the past 25 years, our members have published over 1 ,600 research
studies and presented the results to professional organizations and conferences.
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Research projects undertaken by Alliance and AZA members have achieved
breakthroughs which benefit all marine mammals, including wild populations. For example:
The marine mammal community has developed specialized
vitamin and nursing formulas for young animals born in
zoological environments that have been used to increase
the survival of young abandoned by their mothers in the
wild.
Fuel oil is no longer added to off-shore oil drilling
fluids because the Edgerton Research Laboratory, an
integral part of the New England Aquarium, identified
number 2 fuel oil as the most toxic component in oil
drilling fuel mixtures.
Studies of the food intake rate and reproductive biology
of the northern fur seal have contributed to the overall
knowledge of this species, now designated as depleted.
Researchers tested a satellite-linked radio transmitter
allowing scientists to learn more about the ranging
patterns of dolphins in the open waters of the Gulf of
Mexico.
The Long Marine Laboratory is currently training
California sea lions to swim with gray whales and tape
whale behavior with video cameras. By studying gray
whale behavior, researchers hope to acquire information
that will protect the whales in their natural environment as
well as protect the habitat they require. This research is being
underwritten, in part, by the National Geographic Society.
Collaborative efforts between the University of Hawaii
and a marine mammal facility have resulted in a test to
identify concentrations of the deadly ciguatoxin in the
blood of humans and animals. Early detection and
treatment is now possible for people and marine mammals
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that have ingested fish tainted with toxin.
Scientists have worked with the Air Force to study the
effects of aircraft noise on birds and marine mammals.
A study was done with the National Institutes of Health
and others to determine how harbor seals may avoid heart
disease even though their all sea-food diet is high in
protein and fatty acids. This study is being used to
provide clues as to how humans can fight heart disease,
the number one killer of adults.
Another facility initiated collaborative research which
led to the identification of seal influenza in the North
Atlantic.
The health maintenance research done at marine mammal facilities is also essential for
treating sick and stranded animals. Without knowledge of marine mammal health and
physiology, and without the techniques necessary to help these animals, successful rehabilitation
would be impossible.
C. Helping Stranded Animals .
Many Alliance and AZA members voluntarily participate in federally-sponsored
stranding response networks organized by the National Marine Fisheries Service. Because of
their extensive expertise with marine mammals, Alliance and AZA members are called upon by
the public, local animal welfare organizations, and state and federal regulators to respond to
animals in distress through strandings and injury.
Annually, thousands of marine mammals are reported as stranded on the coasts of the
United States. Efforts to save these animals and generate scientific knowledge are almost
exclusively due to the dedication of the institutions and individuals of the Stranding Network
who receive no payment for their efforts. One Stranding Network member, Sea World, spent
$3.4 million over the last five years rescuing 2,728 animals, including birds and other animals as
well as cetaceans. Of those animals, 1,307 were rehabilitated and 1,080 were released.
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The New England Aquarium currently responds to approximately 500 strandings each
year, including mass strandings of 30-90 pilot whales. The aquarium provides rescue and
rehabilitation services, and has returned pilot whales to their habitat. It has also assisted more
that 50 seals of 5 different species, returning many to the wiid. Direct costs of these efforts are
estimated to be $100,000 per year, in addition to thousands of hours of trained volunteer help.
There are many other examples of rescue efforts, including a west coast sea otter rescue
and care program designed to rehabilitate and return abandoned pups and sick and injured adults
to their natural environment.
The marine mammal community is not reimbursed for the expenses associated with the
medical treatment of stranded animals, - and stranding operations are costly. In the last five
years, Alliance and AZA members alone have spent over $5 million rescuing, treating, feeding
and releasing marine mammals. As a result of efforts by the public display community and
others, 1,500 marine mammals were returned to their natural environments in the last five years.
Sadly, stranded animals are often severely injured and would not be able to survive in the wild.
These animals, most of which are not suitable for display, are maintained at Alliance and AZA
facilities at their own cost.
In addition to responding to calls to assist stranded marine mammals, it is not uncommon
for a single Alliance or AZA facility to receive over 1 ,500 calls a year regarding marine
mammals, birds and other wildlife in distress. Nor is it uncommon for the animals care staff of
these facilities to examine large numbers of animals that succumbed in a mass die-off. Staffs are
on call 24 hours a day, seven days a week.
AZA and Alliance members have also long understood that the study of stranded animals
is important to protect marine mammals in the wild. This work provides essential data about the
natural history of a species and population dynamics, and is an indicator of factors affecting these
animals such as disease, pollution and parasites. Thus, when animals are released, they are
marked for re-identification and many are radio/satellite tracked by federal agencies to gather
still more data to help other animals.
Another example of stranding related research now being done with a wild population is a
project evaluating the health of the Matagorda Bay, Texas dolphin population, which suffered an
unusual mortality event in the spring of 1991. Public display community veterinarians
participating in the study, which is funded by the National Marine Fisheries Service, have
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reported to NMFS that his project presents a strong foundation upon which to understand
subsequent events.
AZA and Alliance members make substantial contributions to the rescue, rehabilitation
and release of stranded marine mammals. In fact, the accumulated knowledge, collective
experience and resources of AZA and Alliance facilities are primary factors in these rescue
efforts.
II. Public Display Facilities Contribute to Their Communities .
AZA and Alliance members contribute substantially to the communities in which they are
located through the thousands of people they employ, the millions of dollars spent on goods and
services, the monies paid and generated in taxes, increased tourism, and the additional dollars
spent in the community by visitors.
Alliance members pay over $55 million in various taxes annually. Employment taxes are
paid to the Federal government, states, municipalities and counties as well as taxes and fees for
water, sewer and utility usage and telephone service. Taxes paid by visitors and collected by
these facilities for remittance to the appropriate government entity include those for food at
restaurants, sales at gift shops and entertainment taxes on gate receipts. For-profit institutions
also pay municipal property taxes and sales taxes.
In addition, Alliance facilities spend another $250 million yearly on the purchase of
goods and services and provide thousands of jobs. Over 12,000 people are employed in full or
part-time positions.
Annually, AZA members make over $440 million in capital improvements to their
facilities. More specifically marine parks have invested over $1 .2 billion in their communities
through construction, continuing expansion and maintenance of their operations.
Studies done by individual AZA and Alliance members clearly demonstrate that public
display institutions have a significant positive impact on their local communities and states.
Based on an economic impact study, the New England Aquarium, for example, estimates total
off-site spending by visitors to its facility is more than $289 million. This off-site spending is
believed to generate $8.7 million in sales and use taxes. Similarly, Marine World Africa U.S.A.
in California estimates it generates an estimated $95-105 million for the local economy annually.
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The benefits to the community from marine mammal public display facilities, either in
direct payments and taxes, other generated revenues, economic multipliers, employment
opportunities, tourism, business and infrastructure growth, are significant financial ones. More
difficult to evaluate, yet equally important, is the community identity and civic pride that comes
from being the home to each of these zoos, aquariums, oceanariums and marine life parks.
HI. Public Attitudes Toward Zoos and Aquariums .
An October 1992 nationwide poll by the Roper Organization showed that Americans
believe public display facilities play a positive role in protecting animals and wildlife and in
educating the public about the animals and environmental conservation. Four in ten Americans
said they have visited an aquarium, animal theme park, or zoo in the past year. 80% said they
enjoyed going to public display facilities and one in six actually contributed financial support.
There is near unanimous agreement (92%) that public display facilities play an important
role in educating the public about marine mammals and their environment. 91% of the people
surveyed agree that aquariums and zoos provide children with an important opportunity to learn
about wild animals and are important in educating children about these animals.
These findings by the Roper Organization were confirmed in a recent Canadian poll.
Eight often people surveyed by Decima Research considered public display facilities to be
educational.
Perhaps the most significant finding of the poll was that 86% believe if the public leams
about animals at zoos and aquariums, they are more likely to become concerned about protecting
these animals and their habitat. Interestingly, two thirds of the public consider it important, if
mot essential, to entertain visitors while they learn about animals.
The vast majority of people surveyed feel that aquariums and zoos play an important role
in preserving animals and that studying animals in captivity helps develop sound conservation
programs for animals. Further, the public credits public display facilities with most of the
successes that have been realized in saving endangered species.
The public supports the public display of marine mammals as an important tool in
conserving marine mammals and their environment.
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IV. AZA Accreditation Program and Code of Professional Ethics .
The AZA monitors the activities of its members through an accreditation program. One
of the foremost objectives of the AZA is to maintain high professional standards and to influence
continuing growth of superior zoological parks and aquariums. In developing and updating its
accreditation program, the AZA is especially concerned with the need for high standards of
animal management and husbandry. This objective is paramount in the maintenance and care of
living collections. Good conscience permits no higher priority. The Accreditation Commission
also accords special attention to how these living collections are used.
Accreditation certifies that an institution is currently meeting standards established by the
Association and is based upon the informed judgment of experienced individuals within the
profession. Zoological parks and aquariums must qualify for accreditation at least once every
five years. Facilities may be inspected during the five year period if suspected problems are
presented to the AZA.
Both institutional and individual members are bound by the AZA Code of Professional
Ethics. This Ethics Code was developed by the profession and is the standard by which proper
conduct is measured.
The AZA Ethics Board, composed of 9 professional AZA members elected by the voting
membership is responsible for developing and maintaining the Code, as well as investigating
formal written complaints of Code violations and initiating investigations on its own. Anyone
can bring an ethics charge against an AZA institution. Based on the results of these
investigations, the Ethics Board makes recommendations for appropriate action to the Board of
Directors.
The Code includes obligations of professional ethics and mandatory standards. Deviation
by a member from the Code of Professional Ethics is considered unethical conduct and the
member becomes subject to investigation by the AZA's Ethics Board and, if warranted, to
disciplinary action.
The AZA is always refining and revising its ethics guidelines based on the professional
expertise of its membership. For example, last spring, the AZA and Georgia Tech University
convened a conference to consider ethical issues facing the Species Survival Plan. Funded by a
grant from the National Science Foundation, the conference brought together nearly 50 experts in
animal welfare, wildlife conservation and management, environmental ethics, and zoo biology to
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discuss ethics surrounding captive breeding, display design, surplus animals, behavioral
enrichment and other relevant topics. Much progress was made and the conference results will
be published by the American Association for the Advancement of Science.
V. NMFS Prop osed Regulations.
The National Marine Fisheries Service ("NMFS") recently issued proposed regulations on
public display of marine mammals. The NMFS proposed regulations represent a major public
policy shift from the current scheme for regulating activities that affect marine mammals and, if
finalized, would create significant new regulatory requirements and a new federal bureaucracy.
The proposal is extraordinarily far reaching and would certainly require a considerable increase
in NMFS' resources.
The NMFS proposal amends the definition of "take" to include holding a marine mammal
captive. The proposed definition would require a facility to apply for a permit and/or
authorization every time they transfer, purchase, hold, or sell a captive marine mammal. The
redefinition of "take" ignores Congressional intent of the MMPA. The Act, its legislative
history, NMFS' own precedents and Court decisions agree "take" means activities in the wild.
The 1972 Committee Report refers to "take" as activities in the wild. In 1974 when NMFS
issued its first regulations, the Office of the General Counsel issued an opinion stating that "take"
did not apply to animals already in a zoological environment. This position was reaffirmed in a
1975 General Counsel's Opinion. NMFS' Annual Reports to Congress repeatedly state that the
term "take" did not apply to animals already removed from the wild. The only court which has
considered the meaning of the term "take" held that it only applies to activities in the wild.
NMFS is now also arguing it has authority to establish care and maintenance standards
for captive marine mammals. These standards would include standards for the animals and for
facility and equipment design as well as for hiring personnel. The Animal and Plant Health
Inspection Service ("APHIS") already has established care and maintenance standards under the
Animal Welfare Act. There is no need for another care and maintenance standards. If there are
problems with APHIS' administration of the regulations, then APHIS should be given more
resources to carry out their duties. Moreover, APHIS is in the process of reviewing their care
and maintenance standards by using the formal negotiated rulemaking process.
The NMFS proposed regulations also contain excessive and probably unconstitutional
regulation over educational programs. According to the MMPA, NMFS does not have authority
to regulate the content of educational programs. Nonetheless, under the proposed regulations,
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NMFS would have the authority to close down or compel changes in a zoo or aquarium program
that, in the agency's view, is not "accurate" or "consistent with the policies and objectives of the
MMPA" or is not conveyed "in an effective manner." The terms "accurate", "consistent" or
"effective" are based on subjective judgment which cannot be made without unconstitutionally,
examining the content of a facility's educational program.
Significant areas of the proposed regulations exceed the statutory authority granted
NMFS in the MMPA. For example, NMFS intends to require permit holders to post a $10,000
surety bond (or make equivalent arrangements) for each animal they hold. This bond is intended
to offset the costs of caring for the animals should a facility terminate operations or its permit be
withdrawn. We are unaware of any statutory authority to support the imposition of a bond
requirement.
The proposal requires each facility to obtain a five-year permit. This permit is nothing
more than permission to apply for yet another authorization since permissions granted under the
five-year permit cannot be exercised until additional authorizations are obtained. We believe this
is a fundamental flaw in the regulations and can only be solved by eliminating the facility permit
and defining NMFS' authority as the protection of animals in the wild. In addition to a five year
permit, the NMFS proposal requires a series of required authorizations and notifications, thus
creating a very cumbersome process. For example, an importation of a marine mammal requires
that requests for an authorization to import be submitted to NMFS headquarters at least 30 days
prior to the proposed event and specify or include certain information. Assuming both facilities
are permitted under the NMFS regulations, the same information must be resubmitted to NMFS
three weeks before the transfer and again one week before. And much of the information must
be submitted by both parties to the transfer and importation. Why isn't it sufficient to have the
information submitted once by one party?
Finally, AZA and Alliance members are concerned that the proposed regulations threaten
the good work they do. A recent economic impact study conducted by Arthur D. Little, Inc.
showed that the proposed regulations would increase costs for the zoological community by
more than $32 million over five years. This figure represents the impact on the zoological
community alone; it does not include the impact on the scientific community or the costs to
NMFS of implementing this new system. If these regulations were finalized, the resources (staff
time and operational dollars) of AZA and Alliance members, would be directed away from
animal care, research and caring for stranded animals and redirected towards duplicative
paperwork and probably increased litigation.
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We believe that the NMFS' proposed regulations, the need to eliminate government
duplication and to streamline the regulation of activities involving marine mammals, provide a
compelling need for the MMPA to be amended.
VI. MMPA Amendments.
AZA and Alliance members recommend that the MMPA be amended to:
1 . Clarify that each offer to sell or purchase a marine mammal, the signing of a
purchase or sale contract, etc., by persons already holding valid permits for
scientific research, public display, or enhancing the survival or recovery of a
species or stock, is not a separate taking requiring yet another permit.
Explanation of Amendment : In Kama, et al. v. The New England Aquarium, et.
aL, the plaintiffs argued the MMPA prohibits the transport, sale, purchase, offer to
purchase, offer to sell, and possession of a marine mammal without separate
permits to '"take" the marine mammal. Under the plaintiffs' theory, each step of a
purchase and sale transaction would require a new permit because each separate
action is a "take". Although that suit was dismissed because the plaintiffs lacked
standing, the MMPA requires clarification to prevent other similar suits.
The only court which has considered the precise question of whether the term
"take" is limited to activities in the wild reviewed the language of the MMPA and
its legislative history, examined the agency's interpretation of the MMPA
concurrent with its passage, and ruled that the term "take" means taking from the
wild and does not apply to animals in captivity.
As originally passed, the Act made it illegal to possess, sell, purchase, offer to sell
or purchase, and transport a marine mammal only if the animal was taken in
violation of the MMPA. During the 97th Congress, the MMPA was amended to
make the purchase, sale, offer to purchase or sell and transport illegal regardless
of whether the marine mammal was taken legally. That amendment was intended
to address enforcement issues associated with subsistence takes. This change has
led to unintended litigation, such as the case discussed above, as to whether the
public display community needs additional permits to transfer legally taken
animals. The proposed amendment, together with the conforming amendments,
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returns the MMPA to its original purpose while still addressing the subsistence
enforcement issue.
Under our amendment, NMFS would still receive notification of movement of
animals and institutions would still submit an annual inventory report to NMFS.
2. Codify the existing practice of NMFS and the Fish and Wildlife Service under
which the taking of animals from the wild is regulated by NMFS and FWS while
their subsequent care and maintenance is regulated by the APHIS under the
Animal Welfare Act.
Explanation of Amendment : This amendment codifies the existing practice of the
NMFS and the Fish and Wildlife Service under which the taking of animals from
the wild is regulated by NMFS and FWS while their subsequent care and
maintenance is regulated by APHIS under the Animal Welfare Act. In the NMFS
proposal, NMFS asserts the authority to set new care and maintenance standards
for marine mammals and begins establishing such standards. Having two, and
perhaps three, agencies establishing marine mammal care and maintenance
standards does not make sense when Congress and the Administration are seeking
to streamline government and control the deficit.
VII. Conclusion .
The contributions of the public display and scientific research communities to the
conservation of marine mammals and the protection of the ecosystem upon which they depend is
chronicled in the millions of visitors who come to our facilities each year and who leave with a
renewed dedication to marine conservation. They are chronicled in the thousands of research
projects funded by AZA and Alliance members. And, they are chronicled in the vast sums spent
on the rescue and rehabilitation of stranded marine mammals who would die on our beaches
without the voluntary commitment of resources made by AZA and Alliance members.
AZA and Alliance members look forward to continuing their efforts under the MMPA
and respectfully request the adoption of our certain clarifying amendments.
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4M
r
STATEMENT OF JOHN GRANDY, PH.D.
VICE PRESIDENT, WILDLIFE AND HABITAT PROTECTION
THE HUMANE SOCIETY OF THE UNITED STATES
BEFORE THE
HOUSE MERCHANT MARINE AND FISHERIES COMMITTEE
SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES
ON MEASURES TO CONSERVE THE MARINE MAMMAL
PROTECTION ACT
FEBRUARY 10, 1994
On Behalf Of:
American Humane Association
American Society for the Prevention of Cruelty to Animals
Animal Protection Institute
Council for Compassionate Governance
Earth island Institute
The Fund for Animals
Humane Society International
The Humane Society of the United States
In Defense of Animals
International Wildlife Coalition
New England Anti-Vivisection Society
Progressive Animal Welfare Society
Society for Animal Protective Legislation
South Carolina Association for Marine Mammal Protection
Whale and Dolphin Conservation Society
The Humane Society of the United States
2100 L Street. NW, Washington, DC 20037
(202) 452-1100 FAX (202) 778-6132
105
Good morning. I am Dr. John W. Grandy, vice president of Wildlife and Habitat
Protection for The Humane Society of the United States (HSUS). I thank you for the
opportunity to testify today on behalf of The HSUS and 14 other member organizations
of the Marine Mammal Protection Coalition (MMPC) and our combined membership
and constituency of over 3 million persons worldwide, regarding the issues of marine
mammal public display and scientific research. MMPC member groups engage in
scientific research, coordinate stranding networks, and provide interpretive educational
programs about free-living marine mammals. The HSUS is the largest animal protection
organization in the United States. We have ten regional offices, an educational division,
a team of investigators, and legislative experts. We have substantial programs focused
on providing humane stewardship for companion animals, laboratory animals, farm
animals, and wildlife. The HSUS has recently established an international arm, Humane
Society International, through which we will extend our programs of animal protection
around the world.
We appreciate the Committee's attention to this issue and look forward to working with
you, Mr. Chairman, to preserve the principles of the Marine Mammal Protection Act
(MMPA) of 1972 during its re-authorization process.
INTRODUCTION
Our position has long been that under most circumstances wild animals should exist
undisturbed in their natural environments. Captivity of marine mammals in zoos,
aquaria, and marine parks and lethal and invasive scientific research are essentially
antithetical to this position. Frequently, captivity and research result in abuse, neglect,
suffering, and premature death of individual animals. Therefore, we maintain that
captivity of and research on marine mammals should only be undertaken for the direct
benefit of the species and that all individual animals involved should be treated in a
humane, professional manner where the welfare of the individual is always paramount.
In addition, public opinion concerning human interaction with marine mammals has
been changing. Documentaries, scientific research on free-living animals, wildlife
photography, and films such as this past summer's "Free Willy" have encouraged and
established a new public awareness of the complex nature of these intelligent, social
creatures. People have begun to question, in growing numbers and in various media, the
ethics or necessity of keeping marine mammals in captivity. The hundreds of thousands
of calls made to the 800 number at the end of "Free Willy", as well as the proliferation
of aquaria without live marine mammal exhibits, the closing of seasonal dolphin shows at
many amusement parks, and the introduction of state legislation prohibiting captures of
marine mammals in state waters and, in South Carolina, the outright prohibition of
public display, clearly illustrate that the debate on public display is entering a new era.
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SPECIFIC PROPOSALS
1. The MM PA should be amended to place primary responsibility with the National
Marine Fisheries Service (NMFS) for the care and maintenance of marine mammals in
captivity.
This issue is central to this re-authorization process. It is vital that primary oversight of
marine mammals in captivity rests with NMFS. The Animal and Plant Health Inspection
Service (APHIS) and NMFS currently share responsibility for oversight of the care and
maintenance of captive marine mammals, with APHIS largely responsible for the
conditions under which they are held. However, APHIS has been persistently reluctant
to modify certain requirements (such as minimum social group size) for marine
mammals because such requirements could then apply to all captive animal species.
Such conflicts emphasize why it is inappropriate for APHIS, which has little expertise
with marine mammals and an overly broad mandate, to have primary oversight of captive
marine mammals, which have very specialized, species-specific requirements.
In addition, APHIS has demonstrated consistently in the past that it cannot adequately
ensure the humane treatment of captive marine mammals. Several facilities, a notable
recent example being the Cape Cod Aquarium in Massachusetts, have been repeatedly
certified and licensed under APHIS when conditions were clearly inadequate. The Cape
Cod facility was finally shut down, but only when NMFS found it to be "unsatisfactory
and inoperable". Clearly NMFS has the expertise to establish adequate standards for all
species of marine mammals held in captivity, as demonstrated in its recently published
proposed regulations to govern special exception permits, and should have primary
responsibility for these animals.
Most importantly, however, the MMPA clearly grants NMFS statutory authority over all
marine mammals, regardless of the environment they inhabit. As NMFS has maintained,
in its proposed regulations and in a recent lawsuit brought against NMFS by the Mirage
Hotel in Las Vegas, captivity is a form of "take". It results in animals being placed in
surroundings completely alien to their natural environment and being maintained in
these artificial surroundings on a continuing basis. NMFS should therefore have
jurisdiction over those on-going takes. Under no circumstances should APHIS, an
agency of the U.S. Department of Agriculture, be given primary authority over any
animals protected by the MMPA.
2. The MMPA should be amended to prohibit the capture from the wild of marine
mammals for public display, as well as their import and export
The public display industry has been extolling the successes of its captive breeding
programs for marine mammals. Indeed, most pinnipeds currently in captivity were
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captive-bred and there are probably sufficient numbers and genetic diversity available
among the captive population to sustain itself without supplementing with wild-caught
individuals. Bottlenose dolphins (Tursiops spp.) also are breeding consistently in
captivity and are close to self-sustaining. It is important to note that none of the species
concerned are endangered, so their captive-breeding programs cannot be considered
necessary for conservation. In further support of this point, facilities engaged in captive
breeding are not actively pursuing programs designed to rehabilitate and release into the
wild any progeny produced. We therefore question whether these programs benefit the
species involved or promote the intent of the MMPA but regardless, we maintain that,
by the industry's own admission, wild captures of individuals from these groups are no
longer necessary for public display or captive breeding.
In addition, as earlier discussed, beached and stranded animals that cannot be released
provide a source for augmentation or replacement of captive collections of marine
mammals. Although frequently permanently disabled (e.g. blind, deaf, or missing
appendages), these animals can be used to educate the public just as can healthy
individuals, although their entertainment value may be diminished. As, according to the
industry, entertainment is not the primary goal of public display, this should not be an
issue. In short, public display can continue as a tool for education and conservation,
using captive-bred and unreleasable stranded animals, without capturing healthy
individuals from intact social groups in the wild. States such as Florida recognize this, as
indicated by the passage of a resolution asking Congress to ban captures.
The industry maintains that because of small captive populations for all other cetacean
species (again, most of which are not endangered), wild captures will continue to be
necessary into the foreseeable future to maintain genetic diversity among the captive
population. This assertion does not support the intent of the MMPA or common sense.
If a species is not endangered and a self-sustaining captive breeding program is not
possible without wild-caught supplementation, then it is questionable that such a species
should even be maintained in captivity. Certainly wild captures in such a case are not
necessary for conservation and continuing to allow them is like allowing someone to try
to fill a bucket that obviously has a hole in it.
For example, the four small whale species currently held in captivity include the killer
whale, the false killer whale, the beluga, and the pilot whale. These species suffer higher
mortality rates, reduced life spans, and lower birth rates in captivity than do populations
in the wild. Captive killer whales experience a mortality rate more than 3 times as high
as that observed in a well-documented wild population (7% annual mortality vs. 2%
annual mortality). In 30 years of holding these four species in captivity in the U.S., less
than 20 calves have survived past the first few months and are still alive today. It should
be clear that individuals of these species cannot handle the transition from the wild to
captivity.
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We now have a high level of understanding of the social structures and behaviors of
marine mammal species in the wild. We know that most exhibit long-term familial
bonds and in general are socially complex, long-lived, mentally sophisticated creatures.
Cetacean species may travel up to 50 to 100 miles a day, dive several hundred feet deep,
and spend only 20% of their time at the surface of the water. The transition from their
natural environment to captivity in a small concrete tank can only be unimaginably
traumatic. A symbol of all that is wrong with removing these animals from their natural
environment is the collapsed dorsal fin seen in most captive killer whales, probably the
result of spending more than half of their time at the surface of their tanks. This
phenomenon is observed in less than 1% of wild killer whales.
The capture process itself, where animals are rounded up, netted or lassoed, or driven
into shallow water, snatched from family and removed from the water, is incredibly cruel
and stressful. Recent revelations concerning the terribly inhumane drive fishery capture
method underscore the problem with allowing the removal from the wild of these
animals. U.S. interests have been involved in subsidizing the Japanese drive fisheries,
where hundreds of dolphins are killed to provide a handful of individuals for sale to
marine parks and aquaria. Only prohibition of this cruel practice will guarantee that
such abuses will end.
The public has received the message of conservation and habitat protection. The
message will be reinforced through various media, such as wildlife videos and interactive
displays, as well as eco-tourism, shore-based observations, and marine parks that display
captive-bred or stranded animals. The public, as demonstrated by recent polls in which
as many as 70% of respondents were opposed to the capture of wild dolphins, has
realized that snatching these magnificent creatures from their natural home, to exist in
confinement in circumstances wholly alien to their experience, is no longer necessary for
education and certainly not for entertainment and in itself does not support a
conservation message.
Concerning import and export, we advocate the outright prohibition of these practices.
Imports may encourage foreign facilities to become an indirect source of wild-caught
animals for U.S. facilities unwilling to weather the increasing controversy over wild
captures. Exports increase the potential that animals will find themselves in sub-
standard situations abroad. Certainly it is unlikely that NMFS and APHIS have been or
will be able to adequately inspect and certify foreign facilities before granting them U.S.
permits, given real-world personnel and budgetary constraints.
Representative Mike Bilirakis of Florida has introduced H.R. 656, which addresses the
issue of export of captive marine mammals. He and the co-sponsors of 656 have
recognized the threat to the well-being of those animals that are sent out of this country
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and we thank them for their efforts to rectify this situation. H.R. 656 also addresses
issues, such as a rigorous tracking system for individual animals, that are covered in the
proposed regulations published by NMFS, which merely emphasizes that NMFS should
have primary authority over captive marine mammals.
3. The MM PA should be amended to prohibit all forms of direct contact between
humans (other than animal caretakers) and marine mammals.
We believe that petting pools, feeding programs, and swim-with-the-dolphin programs do
not constitute legitimate forms of "public display" and as such, these interactive programs
should be specifically prohibited. Such programs pose unacceptable risks to the safety
and health of both the humans and marine mammals involved. Independent studies of
swim-with programs confirm these conclusions. Indeed, there have been a disturbing
number of reports of aggression and sexual behavior between dolphins and humans in
swim-with programs. Increasing numbers of injuries to participants have resulted in legal
actions taken against program operators and have opened the door to potential litigation
against NMFS. Regardless of the number of years in captivity or even being captive-
bred, these are wild, not domestic, animals, who are large, powerful, and possess sharp
teeth, and are known to exhibit aggression toward each other under various naturally-
occurring circumstances. The potential for tragedy in forced interactions with humans is
obvious. Interactive programs involving marine mammals contribute no additional
educational benefits to standard display and in fact constitute pure entertainment, which
is not the intent of the MMPA.
4. The MMPA should be amended to prohibit the intentional feeding of marine
mammals in the wild.
We strongly supported the ruling by NMFS that feeding marine mammals in the wild
constitutes a "take" under the MMPA and fully endorsed efforts by NMFS to act in the
best interests of the animals by issuing regulations banning this disruptive practice.
Feeding wild animals to artificially create opportunities to observe them in the wild
fosters dependency on humans. In the case of marine mammals, it threatens to
habituate them to the approach of boats, which could result in increased injury or
harassment, especially if the animals begin aggressively approaching boats for handouts.
Intentional feeding may disrupt natural foraging patterns and social interactions, and
may introduce exotic pathogens or parasites, depending on the handling history of the
food source. The most prudent course would be to avoid exposing wild marine
mammals to these potential hazards, especially when it is unnecessary. The public can
easily observe wild dolphins and manatees, the two species currently at risk, without
luring them with handouts.
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5. The MMPA should require that the disposition of beached/stranded marine
mammals be strictly regulated.
The MMPA is unclear about the determination of the releasability of stranded or
injured animals. In fact, this ambiguity has allowed animals to be held captive for years
in substandard situations by facilities lacking permits or the ability to meet permitting
requirements. We believe that the process by which facilities receive animals and
determine their eventual fate must be made more stringent. Under no circumstances
should a facility be issued a permit to retain a stranded animal before that animal has
been evaluated as to its releasability. The evaluation itself should be carefully monitored
by federal agencies, especially when the species or stock involved is endangered,
threatened, or depleted. We endorse the provisions for beached/stranded animals in the
proposed regulations published by NMFS.
6. The MMPA should be amended to prohibit invasive and lethal research on marine
mammals unless it will directly benefit the species in the wild.
We recognize that, despite excellent efforts, many stranded animals that are treated at
public display facilities do unfortunately die. The bodies of these animals may provide
data critical to scientific advancement and the study of their tissues can provide valuable
information. However, we believe that there are very few circumstances that justify the
killing of healthy marine mammals in scientific studies. Invasive experiments are also
justified only under a limited set of circumstances. In both cases, we believe that such
research should be undertaken only when its results will directly benefit the species being
studied and no alternative, non-invasive methods exist. This may include basic research
that increases our understanding of the physiology and/or ecology of a species.
However, lethal and invasive research is extremely disruptive to wild populations and can
result in the unintentional deaths of both the animals being handled and in animals
involved in the social disruption, such as seal pups separated from their mothers when
researchers enter a rookery area. NMFS' proposed regulations contain a definition of
legitimate scientific research that is too broad and should be amended to limit its scope
and the potential for abuse. We again direct the Committee to the Bilirakis bill (H.R.
656), which contains language specifically addressing this issue, and which we fully
endorse.
CONCLUSION
Because of their aquatic environment, complex social structures, and intelligence, marine
mammals require special consideration in captivity and when interacting with humans.
The MMPA was designed to safeguard these special considerations. We believe that the
Ill
above amendments will ensure that the MMPA functions as it was intended regarding
captive marine mammals and marine mammals involved in scientific research. We
believe that these amendments will define a new and humane relationship to these
animals for the future. Again, thank you for the opportunity to express our views. We
are prepared to assist the Committee in any way on these issues.
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Statement by Peter L. Tyack for a Hearing on the Reauthorization
of the Marine Mammal Protection Act conducted by the
Subcommittee on Environment and Natural Resources of the
Committee on Merchant Marine and Fisheries of the U.S. House of
Representatives
Comments on permits for scientific research
I am a biologist on the scientific staff at the Woods Hole
Oceanographic Institution, a private non-profit institution for
research and education in oceanography. For the past two
decades, I have studied the acoustic communication and social
behavior of whales and dolphins in the wild. Since these
animals are regulated by the National Marine Fisheries Service,
I will comment more upon this agency than the Fish and Wildlife
Service, which regulates several other species. Conservation
biology is not my profession, but I hope that I can contribute
an independent scientific perspective. I will argue that
regulatory effort should be proportionate to risk to animal
populations, and that ecosystem-oriented management must be
pursued more vigorously.
Marine mammal populations in U.S. waters are primarily
threatened by unintentional effects of human activities.
Overfishing may deplete marine mammal prey enough to reduce the
carrying capacity of the environment. Chemical and noise
pollution degrade the quality of marine mammal habitats. Ships
and fishing gear kill or injure marine mammals by accident.
These are serious policy issues, and we should not be distracted
elsewhere. However, as the 1984/85 Annual Report on the Marine
Mammal Protection Act (MMPAi puts it: "One of the most extensive
administrative programs in the National Marine Fisheries Service
is the permit system that authorizes the taking of marine
mammals for scientific research and public display." This
regulatory focus on scientific research and public display is
completely out of balance with the relative risk these
activities pose to marine mammals. It also penalizes the very
activities that may benefit marine mammals.
Let me give an example from the most endangered baleen whale —
the northern right whale. Most of the 300 right whales left in
the western North Atlantic carry scars from vessel collision or
entanglement with fishing gear, and more adults die from vessel
collision and net entanglement than any other known causes.
Even though ships predictably kill these whales. Federal actions
locate shipping channels in the middle of dense concentrations
of feeding whales. Under current regulations, there are no
preventive controls on ships or fishing gear most likely to kill
or injure the last remaining right whales. In contrast, more
and more controls are being placed on the scientists who
document these problems. A group of biologists on Cape Cod risk
their own lives to save entanaled whales. Since thev aDDroach
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whales closely, the National Marine Fisheries Service required
them to obtain permits to "take" these whales by harassment.
The National Marine Fisheries Service took a year to issue them
a permit. If the scientists had not continued to rescue whales
illegally during this year, whales might have died from a lethal
combination of lax regulation of fisheries coupled with
over-regulation of the rescues. A Woods Hole permit application
to track habitat use by right whales was held up for over two
and a half years, so long that it had to be retracted. By
ignoring the real problem and hampering its solution, the
current implementation of the MMPA is doing more harm than good
for right whales.
How did this policy go so wrong? The MMPA of 1972 banned any
taking or importing of marine mammals, with permits to be issued
only for public display or scientific research. For commercial
fisheries, "take" is usually construed as killing or injuring.
However, the definition of "take" in the MMPA lumps together
kills with harassment. Harassment is poorly understood, but
when a scientist asks for a research permit, "take" has been
defined to include minor behavioral reactions of negligible
impact either to individual animals or to populations. The
National Marine Fisheries Service devotes a significant fraction
of its regulatory effort tracking hundreds of research permits,
treating people who photograph an animal with similar rules as
those who shoot one. This leads to two problems. First, most
projects are delayed for most of a year, ruling out
unpredictable opportunities, and discouraging many promising
students and established scientists from working with marine
mammals. The Scripps Institution of Oceanography has written a
letter discouraging potential students from marine mammal
research because of excessive government regulation. Second,
when the National Marine Fisheries Service allocates scarce
resources on research and display, it ignores many more serious
problems such as the vessel collisions with right whales.
Another example may illuminate the problems of this double
standard. Extensive research shows that whales are disturbed by
loud ships when they are many miles away. These results suggest
that, under current regulations, most ships "take" thousands of
marine mammals a year by harassment. These "takes" are
completely predictable in many areas of high marine mammal
density. If commercial ships operated under the same rules as
research, they could seldom leave the harbor. The
inconsistencies of this policy do no good for marine mammals and
are vulnerable to challenge in court.
There is a critical need to redefine "take" in the MMPA in a way
that focuses effort based upon magnitude of risk to animal
populations. I support a tiered definition separating takes
involving death or injury from takes which might harm an animal
or population and those which are not likely to cause harm.
Given the past regulatory history, it may be important to
reauire reaulators to control the most dangerous takes before
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committing resources to insignificant ones.
The purpose of permits for scientific research under the MMPA
was to allow scientific activities that would otherwise be
prohibited. The current permit process for scientific research
is not inappropriate for the rare requests for lethal or
injurious research. However, I do not support requiring permits
for research activities that have negligible impact or that are
not regulated for other groups. The MKPA should be amended to
allow a general authorization for these specific research
activities. There is no reason this should not include
notification requirements, but requirements for extensive
advance warning would restrict access to the unpredictable
research opportunities that are such an important part of marine
mammal science.
It is less clear how to regulate research activities with an
unknown potential to harm or harass animals. The National
Marine Fisheries Service has devoted more effort to this gray
area than to many nonresearch activities posing much greater
risks to marine mammal populations, but their newly proposed
definitions for harassment remain deeply flawed. The failure of
the National Marine Fisheries Serva.ce to regulate harassment
contrasts with the relative success of Institutional Animal Care
and Use Committees to regulate the complex issues of potential
harassment or pain to individual animals under the Animal
Welfare Act. The Animal Welfare Act is specifically designed to
protect individual animals, just as the MMPA is designed to
protect populations. I would suggest that issues of potential
harassment or pain to individual marine mammals in the course of
research be regulated by such committees, and that regulation
under the MMPA concentrate on risk to populations. This must
involve regular notification to the appropriate Federal agency
of all research potentially harassing or harming individual
marine mammals, and Federal notification to all Care and Use
Committees of special requirements for depleted populations or
critical habitats.
As a scientist, I must point out that research methods involving
physical contact with an animal may involve less risk than other
methods. For example, if one needed to determine the home range
of an animal for a whole season, attaching a small tag in one
approach might be preferable to repeated close approaches for
photography. This issue is of particular importance because
biopsy sampling is well documented to pose negligible risks to
large whales and provides tissue critically needed for
conservation issues such as stock identification and contaminant
analysis. The wording of the MMPA should emphasize magnitude of
risk and to determine lists of which research activities belong
in which risk category based upon the best scientific evidence.
This might include specific approved protocols. Some method to
expedite the transfer of tissue whose collection involved
minimal risk is also needed. Difficulties in shipping tiny
samoles across international borders create a manor obstacle to
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identification of marine mammal stocks,
I must mention another area where a tiered definition of take
must be implemented. The only exemptions from the prohibition
on taking marine mammals that are available to activities other
than commercial fishing, marine mammal research, and public
display, are the small take exemption of section 101(a)(5) and
the one year economic hardship exemption of section 101(c). If
the same definition for taking that is currently applied to
research were applied across the board, few sea-faring
activities would be able to conduct business. For example, the
only mechanism available under the MMPA to allow whale responses
to ship noise would be for the Secretary to issue a one year
exemption for economic hardship. Even if these noise responses
were shown to have negligible impact, they would not be eligible
for a small take exemption because so many whales would be
expected to respond to the noise of each ship.
The existing language for small take exemptions may be
reasonable for lethal takes, although the regulatory process is
so arcane and time consuming that only eight petitions have been
filed. If NMFS is going to start enforcing the prohibition
against taking marine mammals to industries such as shipping or
underwater demolition, some more streamlined regulatory
mechanism needs to be developed. A better solution would be to
include all activities in the allocation of potential biological
removals that were originally designed for commercial fisheries.
I would suggest that takes such as minor disturbance responses
which involve minimal risk to either individuals or populations
should not require authorization. I suggest deleting references
to small numbers of marine mammals for takes that involve
negligible risk. Some middle ground must be found to regulate
takes that might conceivably harm marine mammals. The policy
should emphasize that the critical issue is risk to populations
and should involve strong incentives to determine the level of
risk.
There is an important larger issue here. The impact of
harassment and disturbance on populations depends upon
cumulative impacts which are a form of habitat degradation.
This means they are better regulated as habitat management
problems than by attempting to regulate individual acts. While
harassment is difficult to define in the abstract, it is easier
to rank the significance of prey depletion, incidental take,
contamination, or harassment for a specific population in a
particular habitat.
The single most important change in policy most likely to
protect marine mammals is to develop better stock assessments to
target populations at risk. The MMPA has required a
continuing review of the status of marine mammal populations
since 1972. Twentv vears later, estimates are available for
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fewer than half of the whale and dolphin populations. Few
populations are monitored closely enough to detect declines
before they cause jeopardy. There is a clear need for a renewed
commitment for long term population monitoring and stock
assessment in the MMPA.
Once depleted populations are identified, the mechanism for
habitat management in the current MMPA is conservation or
recovery plans. Of the 9 great whale species declared
endangered in 1970, only 2 have conservation or recovery plans.
While these two plans are fine, they are a drop in the bucket.
Furthermore, while the right whale recovery plan recommends ways
to reduce the threats posed by vessel collision and fishing
gear, these recommendations are not enforced. Marine mammal
protection will be better served by redirecting resources from
extensive permitting of trivial research takes to stock
assessment and conservation plans with some enforcement power.
The MMPA must be updated from regulating the intentional takes
of the whaling era to an era where a broad array of
unintentional impacts threaten marine mammals and the ecosystems
upon which they depend.
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Testimony of Caleb Pungowiyi
before the House Merchant Marine and Fisheries Committee
Concerning the Marine Mammal Protection Act
February 10, 1994
Good morning. My name is Caleb Pungowiyi, President of the
Inuit Circumpolar Conference and a member of the Indigenous
People's Council for Marine Mammals. I appreciate the opportunity
to present my testimony on behalf of Native subsistence users of
marine mammals in Alaska, and also in Greenland, Canada, and
Russia.
The Indigenous People's Council for Marine Mammals (IPCMM) is
composed of Native commissions and organizations working to
conserve and protect marine mammal populations and Native uses of
those mammals for subsistence and the making of handicrafts and
clothing. The Council's members are:
Alaska Eskimo Whaling Commission
Alaska & Inuvaluit Beluga Whale Committee
Alaska Sea Otter Commission
Arctic Marine Resources Commission
Association of Village Council Presidents
Bristol Bay Native Association
Eskimo Walrus Commission
Inuit Circumpolar Conference
North Slope Borough Department of Wildlife Management
Pribilof Aleut Fur Seal Commission
Southeast Alaska Native Subsistence Commission
The Council is authorized to speak for the Alaska Native community,
including the Alaska Federation of Natives, on marine mammal issues
and reauthorization of the Marine Mammal Protection Act.
I sit on the Council in my capacity as President of the Inuit
Circumpolar Conference (ICC) . The ICC is an international
organization that represents approximately 115,000 Inuit living in
the Arctic regions of Alaska, Greenland, Canada, and Chukotka
region in the Commonwealth of Independent States. The principal
goals of the ICC are:
1. to strengthen unity among Inuit of the region;
2 . to promote Inuit rights and interests on an international
level;
3. to seek full and active partnership in the political,
economic, and social development of circumpolar regions in
order to promote greater self-sufficiency among Inuit and to
ensure the growth of their culture; and
4. to develop and encourage long-term policies which safeguard
the Arctic environment.
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Summary
Alaska Natives have relied on marine mammals for their food,
handicrafts, and culture for centuries. They have successfully
managed their use of marine mammals, assuring that no more is taken
than is needed. They have created marine mammal commissions to
protect these uses, and to formalize Native management.
The Native take exemption in section 101(b) of the MMPA
recognizes these factors by allowing Native take to be regulated
only by Alaska Natives unless a species is found to be depleted.
The exemption has worked well over the past 22 years, and should
not be amended. There are, however, at least three ways in which
the MMPA can be improved as it pertains to Alaska Native uses of
marine mammals:
1. The work of Native communities and commissions has been
increasingly constrained by the lack of funding. I recommend
that Congress authorize an appropriation directly to the
Native community so that it may extend and expand its work at
data collection, self-regulation, and development of
comanagement mechanisms.
2. The potential threats to marine mammals from pollution of
their ecosystem is of great concern. Additional funding is
needed to study these threats — with full and equal
involvement of Alaska Natives — and mechanisms should be
added to protect marine mammal habitat.
3. At present, Alaska Natives and their relatives in Russia,
Canada, and Greenland are not allowed to import marine mammal
products that they own or that they received or are bringing
as gifts. This simply makes no sense; the MMPA should be
amended to allow importation of personal items and gifts.
Detailed testimony
I will divide my testimony into five parts: the importance of
uses of marine mammals to Native nutrition and culture; the
effective steps being taken by the Native community to ensure
conservation of marine mammal species; the value of a comanagement
approach to management of marine mammals in Alaska; the effects of
pollution on marine mammals and the Alaska Natives who rely on them
for food; and suggestions for amendments to strengthen the MMPA,
especially with respect to issues that would affect Native
subsistence uses.
The importance of marine mammals to Alaska Natives
As the Congress has consistently recognized over the past 22
years, the use of marine mammals by Alaska Natives (and those in
Canada, Greenland, and Russia) is an integral part of their way of
life. Marine mammals of all kinds, notably including walrus, polar
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bear, sea otter, beluga whales, bowhead whales, fur seals, sea
lions, and a variety of species of seals, are a key source of food
for Alaska Natives living throughout coastal Alaska. Marine
mammals supply a preferred fresh food for Alaska Natives throughout
the year, as well a source of barter and trade with inland Natives
in exchange for land mammals that may not be available to those who
dwell on the coast. Marine mammals also figure prominently in
Native stories, art, traditions, and cultural activities.
Alaska Natives make a wide variety of handicrafts and clothing
from the marine mammals they harvest. They sew parkas, hats,
gloves, and footgear to keep themselves warm. They make carvings
and decorations for their homes and for gifts to their friends and
relatives. They barter these items for other items through
traditional trading networks throughout Alaska. And they sell what
they make to Natives and non-Natives alike.
The sale of handicrafts made of marine mammal by-products has
become a crucial source of income in many remote Native villages.
Jobs are scarce there, and many have limited ways to make money
other than government assistance and the occasional seasonal job.
The limited cash that carvers and sewers can make from their hand-
made clothing and handicrafts therefore is vital in providing at
least some cash in the villages to sustain the subsistence hunting
and fishing way of life.
I want to emphasize two things in this respect. First, in
keeping with the conservation ethic upon which all Native cultures
are fundamentally based, Alaska Natives do not take marine mammals
just to make handicrafts from the ivory and skin. Rather, they
take marine mammals for subsistence purposes and for the use of the
non-edible parts for clothing and handicrafts. This leads to my
second point: the production of handicrafts is not commercial
activity, but a continuation and adaptation to a market economy of
an ancient Native tradition of making and then bartering
handicrafts and clothing for other items that Natives need.
As this short description of the use and importance of marine
mammals makes clear, the taking and use of marine mammals is a
fundamental part of Native culture, whether it be Yupik, Inupiag,
Indian or Aleut. It is so fundamental that Alaska Natives are
committed to doing whatever it takes to preserve and protect their
rights to harvest these animals according to the cultural ways.
Alaska Natives are not the only ones with a long-standing
tradition of reliance on marine mammals. Their relatives in
Greenland, Canada and Russia are egually dependent on these
resources, and rely on them in much the same manner: for food and
clothing, and as a source of income. I urge the Committee to keep
this important point in mind as it evaluates how best to continue
to protect uses of marine mammals by all indigenous peoples,
regardless of where they live.
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Self-regulation of marine mammals by Native peoples
The use by Alaska Natives of marine mammals for literally
thousands of years has made Native peoples wise stewards of marine
mammal populations. Native cultures throughout Alaska and other
countries have developed a comprehensive set of rules, largely
unwritten, governing the use of marine mammals. These rules are
premised on conservation, the avoidance of waste, and respect for
the fish and animals that are used. For the most part, they have
worked quite well in regulating Native uses. Unfortunately, most
of what is heard or known about Native take are those few who
behave wastefully.
Because success in hunting requires a good understanding of
the behavior of marine mammals species, and of the environment in
which they operate, Alaska Natives have also developed a
comprehensive body of knowledge about these animals and their
habitat. That knowledge is holistic in nature, looking at
particular species in the context of their inter-relationships with
other species and the environment in which they all live. It also
is based primarily on experience and the teachings of elders.
Relatively little comes from books or university courses.
Taken together, these rules and the indigenous knowledge on
which they are based have protected all of the species on which
Natives rely for subsistence purposes. No species of marine
mammals has been placed in a depleted, threatened or endangered
status by Native take. Indeed, as the following table
demonstrates, Native take of marine mammals represents only a very
small percentage of their overall populations:
Species
Estimated
Average Annual
RiuuL
Population
Native
Harvest
Walrus
200-230,000
3,000
1.3-1.5
Sea otter
150-300,000
1,100
(1993)
0.7
Polar bear
5,000 (low)
80
1.6
Sea lions
80-85,000
548
0.7
Beluga
20,000 (Northwest)
350
1.8
Bowhead
7-10,000
47
0.7
Bearded seal
350,000
1,500
0.4
Ringed seal
1,250,000
4,500
0.4
Spotted seal
225,000
2,800
1.2
Harbor seal
Not available
2,867
N/A
It might be noted in this respect that Native take often pales in
comparison to other sources of take. For example, a study prepared
for NOAA found that 85% of the take of sea lions from 1956 to 1990
came from sources other than Natives, principally commercial
fisheries. Trites & Larkin, "The Status of Steller Sea Lion
Populations and the Development of Fisheries in the Gulf of Alaska
and Aleutian Islands," (July 1992), p. 49.
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The lack of any negative impact on marine mammal populations
by Native take should come as no surprise. The conservation ethic
of Native culture is deeply engrained, and taught to Native
children from the time that they are able to understand it. And
aside from the importance of learning these rules as a means of
continuing traditional Native practices, it obviously is in the
interests of Native peoples to ensure that they do not take too
many animals, for they want the populations tc remain healthy so
that they can serve as a continuing source of food and culture.
Alaska Natives believe strongly that Native traditions,
practices, and culturally-taught rules are sufficient to protect
and conserve all marine mammal species used by Native peoples. But
Alaska Natives also understand that they live in a very different
setting than that in existence prior to western contact. Western
culture has made substantial and dramatic inroads on traditional
Native beliefs and practices.
Native uses also must now contend with federal and state law,
and the agencies which implement and enforce those laws, as well as
with the expectations of interest groups, especially the animal
rights groups who, to put it charitably, are very concerned with
and often opposed to, Native uses of marine mammals. While they
profess an understanding of Native cultural institutions, many of
these agencies and organizations demand from Alaska Natives that
they show in concrete terms how Alaska Natives in fact work to
conserve marine mammal species.
Faced with the dual demands of protecting and preserving
Native cultural practices and of satisfying the desires of others
to show concrete examples of Native self-regulation, Alaska Natives
have formed a number of marine mammal commissions whose purpose is
to provide institutional mechanisms for the protection of both
Native culture and marine mammal species. I would like to give you
a brief description of the activities of the commissions, and of
some efforts under way in some Native villages. (I have attached
to my testimony pertinent materials regarding these activities.)
Alaska Eskimo Whaling Commission .
The organization of the AEWC began in the fall of 1977, after
the International Whaling Commission imposed a zero bowhead whale
harvest quota on the Eskimo people of northern Alaska. The action
was taken without consultation with the people who had hunted the
animal for centuries, and despite the universal recognition that
the whale's depleted status was not the result of Native
subsistence harvests. Though they could not have been faced with
a more serious threat to the continued existence of their
traditional culture, the Eskimo people did not act rashly, but
quickly recognized the need to organize. They formed a Commission
which included representatives from all of the harvesting
communities, and overcame great odds to become an effective and
respected voice in the management of the bowhead whale. Through a
memorandum of agreement with NOAA which defines and shares
responsibilities and duties regarding research, regulation, and
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enforcement, the AEWC has addressed management questions ranging
from harvest levels, equipment and safety, to humane and non-
wasteful hunting practices. The Commission has acted decisively to
discipline the rare hunter who does not comply with all of the
harvest regulations it has promulgated with the approval of NOAA.
Today, it is engaged in a program to continue its extensive
educational and weapons development projects aimed at increasing
the efficiency, safety, and humaneness of whale harvests under the
IWC quota.
Alaska and Inuvialuit Beluga Whale Committee .
A recent article in Arctic . June 1993, pp. 134-37, summarizes
well the work of this important commission:
The Alaska and Inuvialuit Beluga Whale Committee was formed in
1988 to facilitate and promote the wise conservation,
management and utilization of beluga whales in Alaska and the
western Canadian arctic. The membership of the Committee
consists of representatives from beluga whale hunting regions
and communities in Alaska and the Mackenzie River Delta in
Canada, U.S., federal, state and local government agencies,
and others, such as researchers and technical advisors. Only
representatives from beluga whale hunting communities vote on
matters related to hunting, while the committee as a whole
votes on other issues. Harvest monitoring programs are
planned and coordinated at the spring meetings, implemented
during the whaling season by hunters and others and reported
upon during the fall meeting. To date, the AIBWC has: 1)
established beluga whale research priorities; 2) coordinated
or assisted with the collection of samples for genetic,
contaminant and basic biological studies; 3) provided funding
for DNR studies; 4) commented on federal actions (e.g.,
relating to oil and gas exploration activity) with the
potential to affect beluga whales, beluga whale habitat or
beluga hunting; 5) collected the most complete harvest data
ever available for Alaska; 6) produced a newsletter
highlighting important marine mammal issues for coastal
residents of Alaska; and 7) sponsored the attendance of
committee members at meetings of the International Whaling
Commission. The AIBWC recently ratified its draft Alaska
beluga whale management plan, a counterpart to the existing
plan for beluga whale management in the western Canadian
Arctic, and has initiated discussion of a joint Inupiat-
Inuvialuit plan for management of the shared Beaufort sea
beluga whale stock.
Alaska Sea Otter Commission .
The ASOC was formed in 1988 to provide a united voice to
promote Native participation in resource policies affecting sea
otters and their uses. Since then, the ASOC has begun developing
locally-based sea otter management plans. The Commission is
comprised of six commissioners representing the six regions of
Alaska in which sea otters are harvested by Alaska Natives — these
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span from southeast Alaska to Bristol Bay in southwestern Alaska,
including Kodiak Island, Prince William Sound and the Alaska
Peninsula and the Aleutian Islands. On February 1, 1994, the
Commission entered into a Memorandum of Agreement with the Fish and
Wildlife Service and the Alaska Department of Fish and Game. The
MOA sets out the respective responsibilities of the three
organizations concerning the management of sea otters. The
Commission is currently in the process of developing locally-based
regional management plans for each of the six regions represented
by the Commission. In January, 1993, the ASOC hired a marine
mammal biologist to develop the regional management plans in
consultation with tribal leaders, sea otter hunters, and skin
sewers. The goal of the management plans is to develop harvest
guidelines and to assure biologically and ecologically sound plans
that conform to traditional Native regulatory practices. A
Scientific Advisory Council has been convened by the ASOC to assist
with the plans. At this point, the research necessary to draft
plans for two regions has been completed, and plans for the four
remaining regions will be completed by December, 1995. In addition
to developing the locally-based, regional sea otter management
plans, the ASOC continues to work towards informing Alaska Natives
about existing federal iaws regarding sea otters, and to assure
there is no wasteful take of sea otters.
Eskimo Walrus Commission .
The Eskimo Walrus Commission was formed in 1978 by villages
throughout western, northwestern and northern Alaska for a variety
of purposes related to protection of subsistence uses of walrus by
Alaska Natives:
1. to encourage self-regulation of walrus hunting and
management of walrus by Alaska Natives;
2. to provide education and information to the public;
3. to assure the wise utilization of all parts of the walrus,
including the encouragement of better food preservation and
improved means of harvest;
4 . to represent marine mammal hunting communities in reviewing
and commenting on governmental and other actions which might
affect marine mammals;
5. to involve users in the decision-making process and in
scientific research programs; and
6. to encourage the federal government to cooperate with other
nations in studies, enforcement, and other involvements in the
well-being of marine mammals.
The EWC has 19 commissioners who act on behalf of the walrus-
hunting communities. In 1980, the Commission assisted in the
creation of the Pacific Walrus Technical Committee, which is
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composed of representatives of the Commission, Fish and Wildlife
Service and Alaska Department of Fish and Game to discuss walrus
related issues, disseminate information among the three agencies,
and make recommendations to the EWC. Later, in 1987, EWC, FWS, and
ADFG entered into a formal Memorandum of Agreement for the joint
management of walrus; under that MOA, the three agencies are
proceeding on conservation/management planning for walrus. The EWC
also has been quite active in promoting non-wasteful uses of
walrus; in pursuit of this goal, it has cooperated with FWS in the
prosecution of the few hunters who behave wastefully.
Polar bears .
While there is no formal polar bear commission at this time,
Alaska Natives have expended considerable efforts in polar bear
management. Perhaps the most significant of these is the signing
of a cooperative agreement between the North Slope Borough and the
Inuvaluit Game Council in Canada regarding the management and
harvest of the Beaufort Sea polar bear population. That agreement
sets limitations on the harvest of polar bears by Alaska and
Canadian Natives, and serves as a vehicle for comprehensive
management and protection of that population; it has been very
successful in all respects. Alaska Natives who use the Chukchi Sea
polar bear population are now in the process of emulating that
agreement by working with Russian Natives to develop a joint
agreement for the Chukchi Sea population. The intent here is to
arrive at both a Native-only agreement, and to work with the U.S.
and Russian governments to develop an international, four party
agreement respecting the use and management of the Chukchi Sea
stock. The Native community is also monitoring FWS' proposed polar
bear habitat protection policy. And it is in the process of
evaluating whether and how best to develop a formal polar bear
commission.
Village initiatives .
Many villages in Alaska have come to realize the value of
formally promulgated ordinances regulating the take of fish and
wildlife for subsistence purposes. Several of these ordinances
pertain to marine mammal hunting. For example, the village of
Gambell on St. Lawrence Island has a comprehensive marine mammal
hunting ordinance, which governs the take of marine mammals by
village residents, sets up a mechanism for monitoring take, and
contains specific enforcement policies and proceedings. Three
other villages in northern Norton Sound are now working
cooperatively on a joint regulatory approach for the take of beluga
whales, by which each village will promulgate ordinances governing
their own members and enter into a cooperative agreement to
recognize those ordinances with respect to uses of beluga whales by
the members of the other villages. Other villages are working on
regulatory approaches of their own, a trend that I believe will
increase significantly over the next few years, especially if
adequate funding can be found.
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The value of the Native commissions .
The formation and work of the commissions discussed above is
meant to satisfy several goals. First, the commissions operate to
provide information to and advocacy on behalf of Native marine
mammal users. This provides a formal means for Alaska Natives to
pass on their beliefs to future generations, and to help remote
villagers understand the myriad of rules and regulations with which
they must contend.
Second, the commissions work to develop regulatory structures
with the villages, thereby formal structures to supplement (not
replace) existing practices to protect marine mammals species.
These regulatory structures also provide the concrete mechanisms
sought by government agencies and outside interests, demonstrating
in a more western context precisely how Native rules and
regulations are applied and enforced in the villages.
Finally, the commissions provide a vehicle for comanagement of
marine mammal species between the government agencies on the one
hand and Native users on the other hand. "Comanagement" has become
an important concept in Alaska, referring as it does to the actual
sharing of power and responsibility for marine mammal management in
a way that best protects the interests of the Native peoples, the
government, and the marine mammal species themselves. It is so
important that I would like to discuss its value in greater detail.
Comanagement
The idea of shared decision-making over marine mammal
research, regulation, and enforcement has taken on considerable
urgency in recent years, as Alaska Natives have increasingly had to
deal with federal and state hunting regulations that often are
inconsistent with Native customs and traditions, to the point that
those regulations may require hunters and fishers actually to
violate their own cultural rules. The custom and tradition of
Alaska Natives is characterized by two key principles. First, as
a general rule, Native subsistence users take only fish and game as
needed, and they take it when it is available. Second, the take is
shared with their family and neighbors. The standard management
tools of seasons and individual bag limits generally are
inconsistent with these customs. For example, a fall hunting
season will severely restrict the custom and need to obtain fresh
meat during the winter; and an individual bag limit of one animal
per hunter hardly will allow that hunter to provide for his family,
his sister's family, and his parents.
Another standard management tool is the use of methods and
means restrictions, generally for the purpose of conservation (such
as prohibitions on fish traps) , enforcement (sealing and tagging
requirements) , and some notion of fairness (not shooting from a
snowmachine) . While unintentional, some of these restrictions
place Native hunters in a difficult position, for they may require
them to violate their cultural rules. For example, with some
79-705 0-94-5
126
exceptions, state and federal regulations require that the skull of
a brown bear be brought back to the village to be sealed and tagged
— yet the custom in many Eskimo and Indian villages is that the
skull is to be left in the field as a sign of respect for the bear.
Other restrictions impair the efficiency of Native hunters to no
apparent purpose. Efficiency is a key element of subsistence
hunting. The rule prohibiting a hunter from shooting a caribou
from a snowmachine makes little sense to the hunter in deep snow
who wants to use the handlebar as a gun rest.
The Canadian government has faced similar issues with respect
to Native take in northern Canada. The Canadians' response has
been to create mechanisms that incorporate traditional knowledge
and Native ways into the regulation-making process, with Natives
participating as decision-makers, rather than as interest groups
commenting on government proposals. My own observations confirm
that the Canadian's co-management approach generally has been quite
successful there.
Co-management has also been tried, to a lesser degree, here in
the United States. Two notable examples are the work done with the
Alaska Eskimo Whaling Commission and with migratory bird hunters on
the Yukon-Kuskokwim Delta. The federal government and the AEWC
have entered into an agreement which basically provides that the
AEWC will have the primary responsibility for regulating whale
hunting and for enforcing the regulations — the government's role
is to step in and enforce the law if someone violates the AEWC's
enforcement orders. The Yukon-Kuskokwim Delta Goose Management
Plan is a landmark agreement, by which the federal government
agreed not to enforce the prohibition on spring and summer hunting
of migratory birds, if Native hunters agreed not to hunt certain
species of birds. The Plan contains a variety of provisions
setting out how enforcement will be carried out, including joint
efforts at implementation and notification to the villages of
possible violations.
These approaches have been very successful, but they
unfortunately are exceptions to the general approach in Alaska.
Alaska Natives have been told that the phrase "co-management" is
not acceptable to federal officials in Alaska, and that the term
"cooperative management" is to be used instead. The Native
experience is that this really means: "We manage and you
cooperate." That is, the Native role largely is confined to one of
consultation with federal agencies, with little actual authority
being recognized or granted to Native villages or organizations.
And when Natives attempt to present their traditional knowledge to
federal agencies, that information usually is dismissed as
"anecdotal" and hence not as reliable as that provided by
university-trained scientists.
The Alaska Native community believes that the federal
government needs to be more receptive to the validity of
traditional knowledge, and the value of co-management as a means of
assuring better information about and management of fish and
wildlife resources in Alaska. Meaningful Native involvement in
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both research and regulation development is vital if the
regulations are to make sense in a Native context, and if they are
to be effective in assuring conservation of the resources. This
goes beyond consultation to an actual sharing of research and of
power and responsibility for fish and wildlife management.
The call for co-management and an incorporation of the Native
world view is one that that has received increasing recognition
throughout the world, as the key means for assuring a meaningful
role for indigenous people in the management and preservation of
natural resources and the protection of their culture. It has
worked in Canada, and in the limited fora allowed in Alaska. I
strongly urge the Congress to do what it can to promote and
facilitate comanagement as it evaluates amendments to the MMPA.
Pollution of marine mammal habitat and its impacts on marine
mammals and the health of indigenous people in Alaska and the
circumpolar North
In recent years, it has become increasingly clear that there
may well be substantial threats to marine mammal populations from
pollution of their habitat, principally by heavy metals.
Accumulation of heavy metals in marine mammals in turn may pose
threats to the Alaska Natives who rely on them for food. While the
evidence is not yet conclusive, there are some disturbing trends.
The beluga whale is reported to be one of the most polluted
animals in the world, yet it is one of the preferred foods of my
people. It has accumulated vast amounts of mercury and selenium in
its organs and meat, and ever-growing amounts of organochlorines
such as DDT and PCBs. Heightened levels of organochlorines have
also been linked by European researchers to the decline in polar
bear reproduction on the islands of the North Atlantic. And
according to the Fish and Wildlife Service, "Cadmium concentrations
remained higher [in walrus livers and kidneys] than levels thought
by EPA to interfere with mammalian organ function (13 mg/kg). M
Fish and Wildlife Service, "Heavy Metal Concentrations in Liver and
Kidney Tissues of Pacific Walrus," April, 1993. The levels in
those walrus organs averaged 166.5 mg/kg with some as high as 457.3
mg/kg. Ibid.
We have been told by the Epidemiologist of the Alaska
Department of Health and Social Services that there are no reported
incidents of disease related to overexposure of cadmium. It is
good to know that we are showing no overt signs of cadmium
poisoning. But the Indian Health Service has pointed to an
increased level of clear cell cancer of the kidney in Alaska Native
males. Is there a link? What should we do about the fact that we
are eating walrus livers and kidneys with such elevated levels of
cadmium?
The Fish and Wildlife Service has taken tissue samples of
walrus, but lacks the funding to analyze them to determine whether
the elevated levels of cadmium are causing harm to the walrus
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because their kidneys are not working as they should. At least FWS
has the raw data on walrus. There are no data or programs to
screen polar bears to know if levels of contaminants are going up
or down in those animals. We do not even have good data on the
number of polar bears in Alaska, Canada or Russia.
As we all know, the health of marine mammals and of Alaska
Natives is inextricably tied to the health of the environment.
What is being done to the ocean in which these animals live?
Protecting marine mammals is the intent of the MMPA, but with our
oceans acting as dumping grounds or final repositories of what we
put in the air, these important species of mammals are being
contaminated. The minimal data we have tell us this; we need much
more, and tools to combat the pollution, if we are to manage
healthy stocks of all of the marine mammals.
Suggested amendments to the MMPA .
I have several suggestions to make to the Committee with
respect to changes in the MMPA. The first, and most important, is
one that I most strongly and respectfully recommend that the
Committee not do: make any amendment that will or could weaken the
current Native take exemption in section 101(b) of the Act. That
exemption has worked very well to date; it purposefully and
properly gives Alaska Natives the sole responsibility for
regulating their own take so long as it is not wasteful, provided
that a species is not found to be depleted; and it helps preserve
Native customs and traditions by allowing Natives to follow their
traditional practices free of intrusive and often inappropriate
federal regulation.
I want to emphasize in this respect the concern of the entire
Native community that Congress not take any action that could have
negative ramifications for Native take in the future. This
includes proposals that would replace reliance on the concept of
Optimal Sustainable Population with new concepts or matrices to
evaluate the health of a species. At present, as with the entire
MMPA, the Native take exemption is premised on OSP as the measure
of the health of a species. Any effort to change this approach in
any context will undoubtably have the unintended effect of
establishing a precedent for using the new concept or matrix as a
basis for determining when it would be appropriate for the federal
government to regulate Native take.
We also would view with concern any efforts to establish
acceptable levels of take of marine mammal populations. This may
well lead to actual allocation of marine mammal take among user
groups, which not only will mean the end of the Native take
exemption, but long and bitter fights over allocation that serve no
one's interests.
I do have three suggestions to improve the MMPA from the
standpoint of Alaska Natives. First, as I have previously
discussed, the Native community is hard at work collecting data on
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marine mammal populations and health, participating in federal,
state and private research, monitoring take, developing ordinances,
and enforcing both those ordinances and their traditional rules.
These efforts have been stymied to a large extent by a lack of
adeguate funding. I accordingly suggest that the Congress
authorize the appropriation of funds for the purpose of further
building and sustaining Native institutional capacities for self-
regulation of Native take of marine mammals. In particular, such
funding would enable the development of formal codes and ordinances
and of data bases, and would also support the work of Native marine
mammal commissions as they work for both self-regulation and
comanagement relationships with the federal and state governments.
The funds should not be made available through the standard
granting processes, but made directly to the Native community
through the IPCMM. The Council, in turn, would decide how best to
allocate the funds.
I believe that the funding I have requested will strengthen
the Native exemption by helping to assure that Native self-
regulation is as effective as possible. I want to add, however,
that this funding should not be used to replace existing funds now
being provided to specific Native commissions and organizations,
but rather to supplement those funds so that Native management will
become even more effective.
My second suggestion relates to protections against impacts on
marine mammals and their habitat. Alaska Natives have noted with
increasing alarm that heavy metal levels in marine mammals have
grown substantially over the past few years. This is due to
substantial pollution in the ocean, largely from overseas, but also
from industrial operations under the control of the United States.
Important habitat areas are also directly threatened by some
development activities, such as barge traffic and oil and gas
development. And as is all too evident from the ongoing collapse
of the Bering Sea, the food supply of marine mammals is being
drastically depleted, posing threats not only to them, but to many
other species of birds and other animals that rely on the fish.
The MMPA as it is now written does not directly address these
issues. It should. I urge the Congress to develop mechanisms that
protect not only marine mammals, but also the ecosystem of which
they are a part. In addition, adeguate funding must be made
available to gather the necessary data — and to allow Alaska
Natives full and egual participation in research design, data
collection, and interpretation of the results.
Finally, Alaska Natives and their relatives in other countries
have faced substantial difficulties from the MMPA's flat ban on
importation of marine mammal products. If an Alaska Native travels
to visit his or her relatives in Greenland, Canada or Russia,
wearing clothing that is made of marine mammal products, he or she
cannot bring this or her clothing back into the United States,
because of this ban. Similarly, he or she cannot bring back a gift
made of marine mammal parts. Nor may a Native inhabitant of these
three countries bring their own clothing or gifts to this country.
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These prohibitions make little sense. I accordingly suggest
that Congress amend the MPPA to allow Alaska Natives to bring home
marine mammal products that they own or which they were given as
gifts, and to allow Natives from Greenland, Canada and Russia to
bring marine mammal products into this country for their own use in
this country, or for purposes of giving a gift or using them in a
cultural program. To protect against abuses of such an exception,
I further suggest that the amendment be limited to prohibit the
importation of marine mammal products by Native inhabitants of
Greenland, Canada or Russia for purposes of sale.
To be perfectly frank with the Committee, I do not believe
that this limitation really is necessary. Natives in other
countries are as responsible in their management of marine mammal
species as Alaska Natives; and the making of handicrafts for sale
in the United States would be an important source of supplemental
income for Natives in Canada, Greenland, and Russia who also badly
need the money. However, I am sensitive to the fact that some in
this country might view allowing imports for sale in this country
as leading to wasteful take by non-Alaska Natives for purely
commercial purposes. While I believe that this is an inappropriate
and unfair assumption to make, I also know that the entire issue of
sale is a controversial one. I have accordingly limited the
request on imports so as to avoid unnecessary and undue
controversy, in the hope and expectation that the specific problems
facing Alaska Natives and their relatives in other countries can be
easily resolved.
Thank you for this opportunity to testify. I will be happy to
answer any questions that the Committee may have.
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WILEY, REIN & FIELDING
1776 K STREET, N.W.
WASHINGTON, D. C. 2000S
(202) 429-7000
JOH N A. HODGES
I202J 429-3377
FAC5IMI
(202) 429-
Ex 248349
STATEMENT ON BEHALF OF
THE MARINE MAMMAL COALITION
BEFORE
THE HOOSE COMMITTEE ON MERCHANT MARINE AND FISHERIES
SUBCOMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES
ON REAUTHORIZATION OF THE MARINE MAMMAL PROTECTION ACT
February 10, 1994
My name is John A. Hodges. I am a partner with the law
firm of Wiley, Rein & Fielding in Washington, D.C. I am
General Counsel of the Marine Mammal Coalition, a consortium
of marine mammal public display and scientific research
institutions.
The Marine Mammal Coalition appreciates this opportunity
to present its position concerning reauthorization of the
Marine Mammal Protection Act (MMPA) .
Public display and scientific research institutions play
an essential role in marine mammal conservation. They should
be supported, not discouraged. This view is shared by a vast
majority of the American people and is crystallized in
Congressional policy in the MMPA, which creates a special,
favorable category for these beneficial activities and
provides for simplified, nonburdensome procedures for them.
None of these institutions can afford prolonged, wasteful,
crippling administrative procedures, which divert scarce
resources from activities Congress has declared to be
critically important. Nor can the government afford
inefficient and wasteful use of its scarce resources.
Congress, as part of the reauthorization of the MMPA,
should reinforce its policy
(1) that public display and scientific research are to
be fostered, not hindered;
(2) that permits for these beneficial activities be
granted based on simplified, nonburdensome
procedures; and
(2) that the National Marine Fisheries Service (NMFS)
should not adopt rules that relate to marine
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mammals in captivity — an area that is subject to
extensive regulation by the Animal and Plant Health
Inspection Service (APHIS) under the Animal Welfare
Act.
A recent NMFS proposal, 58 Fed. Reg. 53320 (Oct. 14,
1993), flies in the face of this Congressional intent. It
also results in an inefficient and wasteful use of scarce
governmental resources.
We note that APHIS has stated that the NMFS proposed
rules
"specifically attempt to allow the AA [Assistant
Administrator for Fisheries, NMFS] authority over the
AWA [Animal Welfare Act] . The AA does not have the
authority to summarily overrule the AWA." 1
APHIS also points out that the NMFS proposal
"authoriz [es] the AA to practice veterinary medicine
without a license or a degree in veterinary medicine.
This is in violation of the State Practice Acts, which
govern the practice of veterinary medicine." 2
Therefore, Congress should reject this NMFS proposal.
Below, we first discuss Congressional policy favoring
marine mammal public display and scientific research and then
discuss how the NMFS proposal violates Congressional intent.
1 APHIS, Comments on NMFS Proposed Rules on Protected
Species Special Exemption Regulations, Jan. 28, 1994
(hereinafter "APHIS Comments"), S I.
2 APHIS Comments APHIS, S B. See also , e.g. . APHIS
comment on proposed S 216.37(c) ("This section is especially
disconcerting in that it appears that the AA can control
veterinary treatment. The veterinary profession is regulated
by the appropriate State Practice Acts, State Veterinary
Medical Boards, and appropriate FDA and DEA regulations. Even
the MMPA does not grant the NMFS the power to regulate
veterinary medicine. This also undermines a cornerstone in
the AWA regulations, allocating authority to the attending
veterinarian."); APHIS comment on proposed S 216.37(1) (2)
("Again, the AA presumes to dictate the actions of the
attending veterinarian and/or requires a facility to change
its established displays and/or colonies if the AA doesn't
agree with it. We cannot support this.").
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I. CONGRESSIONAL POLICY FAVORS MARINE MAMMAL
PUBLIC DISPLAY AND SCIENTIFIC RESEARCH
A. Marine Mammal Protection Act
The MMPA, originally enacted in 1972, resulted largely
from public concern about the thousands of marine mammal
mortalities from such activities as sealing, whaling, and
some commercial fishing activities. Its basic intent is to
conserve wild animal stocks and the ecosystem.
At the same time, Congress recognized the indispensable
role of zoological institutions in raising public awareness
of marine mammals and intended not to inhibit these
institutions from obtaining the small number of animals they
need for their beneficial purposes. 3 Congress also
Congress recognized the important role of public
display institutions in relation to marine mammals as
"resources of great international significance, esthetic and
recreational as well as economic," 16 U.S.C. S 1361(6).
During Congressional deliberations on the MMPA, Congressman
Pryor said that "the intent of this basic legislation was not
to deprive those particular institutions of bringing in a
proper number of animals for the public use." Legislation on
Preservation and Protection of Marine Mammals: Hearings
before the Subcomm. on Fisheries & Wildlife Conservation of
the House Comm. on Merchant Marine & Fisheries, 92d Cong.,
1st Sess. 83 (1971). Senator Hollings stressed that without
observing marine mammals in oceanaria the "magnificent
interest" in marine mammals will be lost and "none will ever
see them and none will care about them and they will be
extinct." Ocean Mammal Legislation: Hearings Before the
Subcomm. on Oceans & Atmosphere of the Senate Comm. on
Commerce, 92d Cong., 2d Sess. 266 (1972). "[I]f it were not
for these organizations and the public exposure you have on
these animals in the first place, these matters wouldn't be
brought to the attention of the public." Id. 555. Senator
Cranston emphasized the "valuable educational service
performed by these institutions." Id. 552-53. Senator
Chiles stated that he gave "strong support towards
recognizing the oceanarium exhibition industry in this
legislation." Id. 164. Senator Gurney took note of the
"advent of seaquariums and oceanariums" that have brought
home "a much greater awareness of . . . ocean mammals." 118
Cong. Rec. S25291 (July 25, 1972). Senator Tunney
anticipated "very little difficulty" for public display
institutions as a result of the MMPA. Id. S25270.
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recognized the important role of scientific research in
relation to marine mammals. 4
Over 100 million people annually visit public aquariums,
oceanariums, and other zoological institutions in the United
States. These institutions are central to the effort to
stimulate public interest in, education about, and support
for marine mammal conservation. 5 They are involved in
networks sponsored by NMFS to assist stranded marine mammals.
They also play a vital role in the life and development of
their communities and states. They educate the public, are a
source of wholesome recreation, provide significant
employment, and stimulate local economies by generating the
expenditure of hundreds of millions of dollars by visitors.
In recognition of the essential role that marine mammal
public display and scientific research institutions play in
carrying out the purposes and policies of the MMPA, Congress
created a special, favorable provision for them under the
MMPA. MMPA permits for public display and scientific
research are a special exception to the Act's moratorium on
taking and can be obtained pursuant to simplified
requirements (16 U.S.C. § 1371(a)(1)). This regime for
public display and scientific research is regulated under a
regime separate from the regimes applicable to other
activities such as commercial fisheries (S 1371(a)(2)), and
periodic "waivers" (S 1371(a)(3)(A)). The MMPA is
administered in relevant part by NMFS within the Department
of Commerce.
4 The MMPA recognizes that "there is inadequate
knowledge of the ecology and population dynamics of such
marine mammals and of the factors which bear upon their
ability to reproduce themselves successfully." 16 U.S.C. §
1361(3) .
5 Dolphins do well in public display institutions.
As stated in a recent federal study, "[c]urrent data indicate
that survival rates in captive dolphins may be similar to
and, in some cases, possibly better than survival rates in
free-ranging dolphins." U.S. Department of Commerce, NMFS,
Final Environmental Impact Statement on the Use of Marine
Mammals in Swim-With-The-Dolphin Programs, April 1990, p. 68.
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Congressional policy in favor of public display and
scientific research was reiterated and reinforced in 1988,
when Congress reauthorized the MMPA. 6
Thus, the House Committee report on the 1988
Amendments stressed that
"[e]ducation is an important tool that can be used
to teach the public that marine mammals are
resources of great aesthetic, recreational and
economic significance. It is important, therefore,
that public display permits be issued to entities
that help inform the public about marine mammals,
as well as perform other functions.
Permits may continue to be issued to public
and privately owned zoological parks and
oceanariums, as well as other qualifying
institutions." H.R. Rep. No. 970, 100th Cong., 2d
Sess. 33-34 (1988).
Similarly, the Senate Report stated that
"[e]ffective public display of marine mammals
provides an opportunity to inform the public about
the great aesthetic, recreational, and economic
significance of marine mammals and their role in
the marine ecosystem." S. Rep. No. 592, 100th
Cong., 2d Sess. 29 (1988).
The Senate Report went on to say that
"[t]he Committee recognizes that the recreational
experience is an important component of public
display and that public display has served a useful
educational purpose, exposing tens of millions of
people to marine mammals and thereby contributing
to the awareness and commitment of the general
public to protection of marine mammals and their
environment." Id.
In the reauthorization, Congress also added enhancement
of survival or recovery of a species or stock to the
activities covered under Section 1371(a)(1), thus reaffirming
that the items in this section are categories considered by
Congress to be beneficial to marine mammals. Marine Mammal
Protection Act Amendments of 1988, 5 5(c), Pub. L. No. 100-
711, 102 Stat. 4765 (1988).
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This Congressional intent that NMFS procedures for
public display and scientific research be simple and non-
burdensome was recently reconfirmed by the Court in Animal
Protection Institute v. Mosbacher . 799 F. Supp. 173, 179
(D.D.C. 1992):
"Congress also contemplated that there would be a
limited number of instances in which an inconsequential
quantity of animals could be taken or imported for
beneficent purposes, such as for scientific research,
stock preservation, or, as here, for public display.
Consequently, in § 1371(a)(1) it gave the Secretary
authority to grant a modest dispensation in such cases
from the most onerous constraints of the MMPA - the
absolute moratorium - without awaiting the outcome of
more elaborate administrative proceedings the
regulations might require for more destructive assaults
upon the population of a species."
B. Animal welfare Act
In contrast to the MMPA, the Animal Welfare Act of 1975
regulates animals that have already been taken ( i.e. . are in
captivity). The Animal Welfare Act, as amended in 1979,
contains provisions dealing exclusively with marine mammals
in zoological institutions, establishing strict,
comprehensive standards for the size and nature of
enclosures, environmental quality, food handlinq, transport,
and humane treatment (hereinafter referred to collectively as
"husbandry") . The marine mammal section of the Animal
Welfare Act is the strongest animal welfare legislation ever
enacted by Congress.
The Animal Welfare Act is administered by APHIS. All
facilities that display marine mammals must be licensed —
and thus certified — by APHIS.
II. NMFS PROPOSAL VIOLATES CONGRESSIONAL INTENT
The NMFS proposal flies in the face of this
Congressional intent. It directly contravenes the
requirements of the MMPA and imposes unconstitutional
burdens. It ignores recent court decisions construing the
MMPA.
Contrary to the basic thrust of the MMPA, the NMFS
proposal would impose the most onerous regulatory regime
under the statute. The proposal would inflict crushing
administrative and financial burdens. The information
required in applications would be massive. After a permit
137
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was granted, the permit holder would be subject to further
authorizations and notifications before it could exercise the
permit. It would become bogged down in onerous permit
conditions. It would have to file numerous, duplicative
reports. Burdensome new fees would be imposed for a number
of activities; this would violate the requirement of the MMPA
that fees be charged only for issuance of permits and that
the fees be reasonable. 16 U.S.C. S 1374(g). And there would
be charges for surety bonds, which are not authorized under
the MMPA.
A study by Arthur D. Little, Inc. demonstrates that the
proposal, if adopted, would impose approximately $32.2
million of costs on public display institutions in the first
five years. This figure does not take into account the cost
to scientific research institutions (other than scientific
research carried out by public display entities) and to the
government. This figure also does not take into account
other burdens such as the litigation that would inevitably
flow from the proposal, the diversion of institutions'
energies to dealing with administrative burdens, and the loss
of flexibility.
The bulk of the new burdens flows directly from the
proposal's violation of the MMPA with respect to the scope of
NMFS authority. Based on a bizarre and novel interpretation
of the term "take" that is contrary to its own longstanding
interpretation, NMFS now claims jurisdiction over marine
mammals in captivity and uses its new interpretation to
justify a mountain of proposed regulations of marine mammals
in captivity. For example, standards for captive care and
maintenance, qualifications of staff, design of facilities,
groupings of marine mammals in institutional settings, space
requirements, etc.
This interpretation directly violates the MMPA. As held
recently by the Court in Mirage Resorts. Inc. v. Franklin .
CV-S-92-759-PMP (D. Nev. , Nov. 24, 1993), the term "take" in
the MMPA is confined to activities in the wild and does not
cover activities concerning marine mammals in captivity. The
Court went on to hold that activities relating to marine
mammals in captivity fall within the purview of the APHIS
under the Animal Welfare Act. Given the declared
unlawfulness of the purported underpinning of so much of the
NMFS proposal, the proposal must be rejected.
The proposal directly contradicts a holding of the Court
in the Animal Protection Institute decision, namely that
Congress did not intend that public display and scientific
research be subject to a "consistency" requirement concerning
the marine mammal programs of countries from which marine
mammals are imported. Ironically, this NMFS proposal would
138
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have the effect of banning the importation of marine mammals
even though importation would improve their condition. And,
as indicated previously, the proposal violates the further
admonishment of the Court (see page 6, supra ) that Congress
intended that NMFS procedures be simple and nonburdensome.
The proposal violates the MMPA and the Constitution by
voiding the rights of persons who possess or wish to possess
marine mammals. For example, only "facilities" could hold
permits for marine mammals; others would lose their rights to
marine mammals, including marine mammals that they now hold.
This violates the MMPA, which allows "persons" to have
permits, 16 U.S.C. § 1374(c)(1), and takes such persons'
property without due process and without just compensation.
Permit holders would have to renew their permits every
five years. That obligation would exist despite the fact
that the permit had already been exercised. If a permit were
not renewed, the possessor of the marine mammals would lose
his rights to the animals he possesses. This would violate
the terms of the MMPA, which allows a person to possesses a
marine mammal once it has been lawfully collected. See . 16
U.S.C. § 1372(a)(3). The proposal in this regard is also an
unconstitutional taking of property.
The proposal exceeds the boundaries of the MMPA with
respect to educational programs. It violates Congress's
admonishment that NMFS not become involved in regulating the
content of educational programs. See . 16 U.S.C. S
1374(c)(2); H.R. Rep. No. 970, 100th Cong., 2d Sess. at 34
(1988) . NMFS would even prevent entities from selling
certain products such as photographs of marine mammals except
in restricted circumstances. Such regulation violates the
First Amendment rights and is an unconstitutional taking of
property.
The proposal directly violates the statutory exemption
of pre-Act animals from the requirements of the MMPA. 16
U.S.C. S 1372(e) .
The proposal would also authorize the Assistant
Administrator for Fisheries to practice veterinary medicine
without a license or a degree in veterinary medicine, in
violation of State Practice laws governing the practice of
veterinary medicine.
The proposal seeks to regulate exports of marine mammals
despite the fact that the MMPA does not govern exports and
the MMPA does not have extraterritorial applicability, United
States v. Mitchell . 553 F.2d 996 (5th Cir. 1977).
139
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The proposal would authorize inspection of facilities
without a warrant, in violation of the MMPA, 16 U.S.C. §
1377, and the Constitutional guarantee against unreasonable
searches and seizures. NMFS would even have the unfettered
discretion to call on private persons to conduct the
inspection.
The proposal would adopt the extraordinary concept of a
"captive stock" of marine mammals. The MMPA intends that the
concept of stocks relates to marine mammals in the wild, not
in captivity. See , e.g. . 16 U.S.C. SS 1361(1), (2). The
proposal would thus pave the way for NMFS management of
marine mammals in captivity, which violates Congressional
intent.
III. CONGRESSIONAL RELIEF IS WARRANTED
Despite the Congressionally-mandated simplicity of
procedures for obtaining public display and scientific
research permits and the small number of animals taken for
these purposes, the NMFS proposal would make obtaining such
permits a bureaucratic nightmare contrary to Congressional
intent, wasteful of federal resources and debilitating to
zoological institutions.
The Marine Mammal Coalition believes that legislative
action is necessary to restore common sense to the regulatory
scheme. Congress should reinforce Congressional intent to
have permits issued for the number of animals necessary for
public display and scientific research in an expeditious and
simplified manner. Congress should also eliminate intrusion
by NMFS into animal husbandry matters, which are properly
within the jurisdiction of APHIS. Congress should squarely
reject the pending NMFS regulatory proposal. The Marine
Mammal Coalition looks forward to working with Congress to
accomplish these important goals.
140
Hilton Waikoloa Village
69-425 Waikoloa Beach Drive
Kamuela. HI 96743
(808)885-1234
Testimony of Dolphin Quest
before the
House Merchant Marine and Fisheries Committee
February 10, 1994
Dolphin Quest, located at the Hilton Waikoloa Village on the Big
Island of Hawaii, is pleased to submit testimony on the
reauthorization of the Marine Mammal Protection Act (MMPA) .
We applaud the Committee for it's action on one of our Nation's
most important environmental protection laws.
Dolphin Quest shares this Committee's view on the need to protect
the marine ecosystem, and is wholly committed to improving the
future well being of our marine environment through education,
conservation and research. Indeed, this Committee saw as
fundamental to protecting marine mammals and the marine ecosystem
the use of public display facilities to educate the public at
large on the need to preserve and protect our valuable marine
resources.
The goals of public display facilities are concomitant with that
of Congress in enacting the MMPA. Among those goals are:
8 To help ensure that there are opportunities for the public
to learn about marine mammals (including depleted,
endangered or threatened species) .
£ To enhance public appreciation for and understanding of the
need for marine mammal conservation both in the United
States and worldwide.
$ To contribute to an improved, scientific understanding of
the physiology, ecology and population dynamics of marine
mammals, including the facts which bear upon their ability
to reproduce themselves successfully and to survive amidst
the growing threats to their existence.
1 To inform the public about the benefits of research,
education and conservation programs of marine mammals, both
in public display facilities and in the wild.
s To encourage the formulation, dissemination and continued
development of professionally recognized and age-appropriate
education and conservation programs focusing on marine
mammals.
141
• To provide meaningful recreational experiences that will
encourage the public to seek further learning opportunities
regarding marine mammals.
Dolphin Quest supports the MMPA and does not believe it is in
need of major modification. However, we have a unique
perspective of the Act and urge the following issues and
amendments be considered during the reauthorization:
I Amend the Congressional findings to recognize the value
of public education and scientific research by public
display institutions in enhancing the conservation of
marine mammals.
1 Clarify that public display includes interactive
exhibition. Scientific studies and real world practice
show that people learn more, and retain it longer, when
the learning process is interactive. Interactive
programs should be included in public display programs
where appropriate.
8 Amend Section 3 of the MMPA by adding "in the wild" before
the period in paragraph 13. This change will clarify NMFS '
authority under the MMPA, make it consistent with the
original intent of Congress in passing the legislation, and
underscore the mandate given to NMFS by Congress to direct
NMFS' resources and efforts toward the very serious threats
that wild populations of marine mammals face. It will also
enable NMFS to continue to govern takes in the wild,
regulate activities involving beached and stranded marine
mammals, and will allow NMFS to continue its current
inventory and tracking data-base.
i Clarify that persons who already have a public display
permit do not need yet another permit to (a) transfer
marine mammals already in captivity between their own
facilities or (b) offer to sell, offer to purchase, or
sell, purchase or transport marine mammals already in
captivity to another facility which already has a
marine mammal public display permit for the species
involved.
These changes clarify the statute, make the MMPA more consistent
with the original intent of Congress in drafting the legislation,
and fully recognize the value that interactive and other public
display facilities have in our society.
To this end, Dolphin Quest's education programs, scientific
resources, financial and logistical support for research, as well
as the overwhelming impact that its public programs have on
participants' awareness and concern for dolphins, illustrate the
many ways that public display organizations make significant
contributions to their communities and to the conservation of the
marine environment.
142
Established by two marine mammal veterinarians, one of Dolphin
Quest's primary goals is to provide an interactive learning
experience for the public, which inspires appreciation for marine
mammals and concern for the conservation of our marine
environment. Dolphin Quest has provided an opportunity for more
than 26,300 children to learn about dolphins through its publicly
available interactive education programs; more than 6,000 school
children with a chance to learn about the importance of
preserving their local marine resources through a full day
education field trip experience; more than 220 educators with the
opportunity to attend Dolphin Quest's teacher work shops;
and more than 62,000 adults with an opportunity to learn first
hand about dolphins.
To illustrate to this Committee the impact and importance of
interactive learning which can be provided by public display
facilities, attached is a statistical summary of questionnaires
which were distributed to Dolphin Quest program participants
between December 1988 and September 1993. It is interesting to
note that 91.1% of the respondents state that the educational
value and personal impact of their experience was greater than
books, magazines, newspapers, television programs and nature
movies. Additionally, 99.2% believe that an interactive program
such as Dolphin Quest will inspire people to actively support
environmental issues. Also attached is a statistical summary of
questionnaires completed by teachers participating in Dolphin
Quest education programs.
Public display facilities also fulfill their commitment to marine
conservation by participating in or funding scientific research,
participating in marine mammal stranding and convalescence
programs and other scientific community activities. Since 1989,
Dolphin Quest and the Hilton Waikoloa Village have generated over
$405,000 in vital funding for important marine education,
conservation and research. A large portion of these funds have
been used to support university level field research and
educational programs. Through the non-profit Waikoloa Marine
Life Fund, established by Dolphin Quest in 1989, individuals and
corporate America have the ability to contribute to scientific
research. In addition, biological samples obtained voluntarily
through behavioral husbandry training from Dolphin Quest dolphins
have assisted scientists in the study of dolphin immune and
reproductive physiology. In 1991, Dolphin Quest also purchased a
$10,950 computer system capable of analyzing dolphin and whale
vocalizations for researchers studying cetacean acoustics in
Hawaiian waters. This computer system is the beginning of an
acoustic laboratory which will function as a base of operations
for many cetacean acoustic studies.
In conclusion, Dolphin Quest, as part of the modern oceanarium
and zoological community, takes seriously the responsibility
associated with the public display of marine mammals. Because
public display facilities provide people with a first hand
experience and education, the future well-being of marine mammals
and their environment are more certain due to an informed and
inspired society choosing to take part in marine conservation.
143
Hilton Waikoloa Village
69-425 Waikoloa Beach Drive
Kamuela, HI 96743
(808)885-1234
DOLPHIN QUEST QUESTIONNAIRE
12/9/88 - 9/30/93
Summary of Statistics
Discussion
One of Dolphin Quest's primary goals is to provide an interactive learning experience for the public which
inspires appreciation for marine mammals and concern for the conservation of our marine environments. In an
ongoing effort to monitor our effectiveness in realizing this goal, Dolphin Quest continually gathers the following
input from individuals who have participated in our programs.
9021 Questionnaires were completed and returned to Dolphin Quest between December 1988 and September
1993 Individuals participating in Dolphin Quest programs were given the questionnaire upon completing their
Dolphin Encounter. An average of 29% of the questionnaires were returned for compilation which provides a
statistically significant representation.
Not every respondent answered every question. Percentages were tabulated based on the number of responses
to each specific question. For example, in Question #8 there were 8980 "yes" answers plus 41 "no" answers
makes a total of 9021 responses to that question. To get the percentage of "yes" answers, 8980 was divided by
9021 and multiplied by 100. Percentages are then rounded up or down to the nearest percent:
8980/9021 = 0.995455 X 100 = 99.5455% = 99.5%
Question 1 : Was your Dolphin Quest experience a positive one?
Yes 100% No 0%
Question 2: Do you feel that the dolphins enjoyed the interaction?
Yes 99.7% No 3%
Question 3: Do you feel that the dolphins were treated with respect, care, and sensitivity?
Yes 100% No 0%
144
Question 4: Prior to your Dolphin Quest experience, what exposure to dolphins have you had? Please Check
all that apply:
Observation in the wild 40 9% Nature movies/TV 84.0%
Lectures/Courses 11.1% Other 4.8%
Professional Work 1.4% Books/Nwspr/Magzn76.3%
Oceanarium 86 5%
Question 5: Please compare the educational value and overall personal impact of your Dolphin Quest
experience with the following: (If you have not experienced one of the following use
"NA")
The educational value and overall personal impact of my dolphin experience was...
89.6% Greater than 6 6% Equal to 3.8% Less than Nature movies/TV
90.5% Greater than 6 5% Equal to 3 0% Less than Lecture/Courses
92.6% Greater than 5.4% Equal to 2.0% Less than Book/Nwspr/Magazine
89.6% Greater than 7.4% Equal to 3.0% Less than Observation in the wild
Question 6: Was information regarding marine mammal conservation presented in your dolphin Program?
Yes 99.1% No 0.9%
Marine mammal conservation issues are always presented during Dolphin Encounters, it is
significant that 99 1% of participants are clearly hearing this vital information. The personal,
interactive format of the Dolphin Quest encounter is highly effective in focusing participants'
attention on the education and conservation information presented.
Question 7: Did your knowledge about dolphins increase through the encounter program?
Yes 98.4% No 1.6%
Question 8: Would you recommend that such interactive programs continue as a means to increase public
sensitivity and appreciation of dolphins and dolphin concerns?
Yes 99.5% No 0.5%
Question 9: Do you believe that an interactive experience such as Dolphin Quest, will inspire people to actively
support environmental issues?
Yes 99.2% No 0.8%
145
SAMPLES OF COMMENTS FROM DOLPHIN QUEST QUESTIONNAIRES
•"We were at the Hyatt doing a location inspection for our 1994 seminar. Dolphin Quest was the
greatest experience the hotel had to offer and is one of the main reasons I will be bringing my group there
in 1994."
•"We loved it so much, we are already looking ahead to our next visit."*"It was a very good experience!!
I loved it and would do it again anytime."
•"I thought the entire experience was excellent and I commend the Hyatt for helping support the
program. Both the dolphins and the staff really appear to enjoy what they are doing. This is a great way
to increase awareness of marine life and environmental issues."
•"I loved the experience. It was very enjoyable and educational. Dolphin Quest was our sole purpose for
visiting this island and this hotel."
•"This was truly a high point in my life, it's been a dream for me since I was a child. Thank you for
protecting this wonderful species."
•"The dolphin experience was a wonderful, unique opportunity which should be continued to inform
others about our friends in the sea."
•"This was a highlight in my hfe! Almost a religious experience. Thanks for the time you have taken to
educate us!"
•"The trainers really seemed to love the dolphins and did their best to make it a positive experience for
us. I thoroughly enjoyed it and am sure it will be my fondest memory of Hawaii."
•"This was a wonderful experience. It made my vacation. The dolphins are so beautiful."
•"It was absolutely incredible, Thank you for the wonderful experience."
•"This was truly a wonderful experience. I would highly recommend this to anyone. Words can't express
what a great time this was."
•"A special thank you to all of you. This is a very unique experience and one my husband and I will
treasure with our vacation memories Thanks again and great job."
•"We would not have come to the "Big" island had it not been for the Dolphin Quest at the Hyatt
Waikoloa!!"
146
Hilton Waikoloa Village
69-425 Waikoloa Beach Drive
Kamuela. HI 96743
(808)885-1234
"DISCOVER DOLPHINS" TEACHER QUESTIONNAIRE
1/1/91 - 5/31/92
Summary of Statistics
6/4/92
Discussion
Teachers were given a short questionnaire when their class completed the "Discover
Dolphin!" education program. Approximately 50% of the teachers took the time to
complete these evaluation forms and mail them back to us. Many classes also sent thank
you letters, poems, stories, and art work.
RATINGS:
Percentages were tabulated based on the number of responses to each specific question.
Each percentage number was carried only to the tenth position; nothing was rounded off.
Not every respondent answered every question.
QUESTION 1: Do you feel it was a valuable educational experience to participate in the
"Discover Dolphins" educational program which consisted of four components:
directed teaching/discussion Yes 100% No 0.0%
activities/choosing time Yes 100% No 0.0%
.film/slides Yes 100% No 0.0%
dolphins/lagoon with trainers Yes 100% No 0.0%
QUESTION 2: Was the content appropriate to your grade level?
teaching/discussion Yes 100% No 0.0%
activities/choosing Yes 100% No 0.0%
film/slides Yes 100% No 0.0%
dolphins/lagoon Yes 100% No 0.0%
QUESTION 3: Was the allotted time suitable to learning?
teaching/discussion Yes 100%. No 0.0%
activities/choosing Yes 100% No 0.0%
film/slides Yes 100% No QM>
dolphins/lagoon Yes _Z2%_ No_21%_
Comments indicated that teachers and students enjoyed the dolphin program so much they
would have preferred it to be longer.
147
QUESTION 4; Did your students enjoy the "Discover Dolphins!" education program?
Yes 100% No 0.0%
QUESTION 5: Are your students better informed about marine mammal conservation
issues because of this program?
Yes 100% No O0%
• Questions 6,7,8 and 9 are relevant for program development purposes. We are including
the results for your review.
QUESTION 6: Are the follow up activity suggestions of benefit to you?
Yes 100% No 0.0%
(Dolphin Quest provides two pages of suggestions for classroom learning activities to
reinforce the marine science lessons taught in the "Discover Dolphins!" field trip program.)
QUESTION 7; Is this field trip part of a larger instructional unit in the classroom?
Yes 93% No 7%
If yes, what is the main focus of the study unit? answers varied
What other curriculum components are used in this unit?
books 68% films 36% work sheets 57% activities 54%
chapter in text book 39% other 32%
QUESTION 8: Would you be interested in borrowing educational videos and other
instructional materials to enhance your marine science curriculum at school?
Yes 100% No 0.0%
QUESTION 9: Would you be interested in attending a teacher training workshop about
marine mammals?
Yes 100% No 0.0%
148
STATEMENT OF ROBERTA. DEWEY
DIRECTOR, HABITAT CONSERVATION DIVISION
DEFENDERS OF WILDLIFE
ON
POLAR BEAR CONSERVATION
AND REAUTHORIZATION OF THE
MARINE MAMMAL PROTECTION ACT
FOR
THE SUBCOMMITTEE ON
ENVIRONMENT AND NATURAL RESOURCES
MERCHANT MARINE AND FISHERIES COMMITTEE
U.S. HOUSE OF REPRESENTATIVES
MARCH 10, 1994
ON BEHALF OF
DEFENDERS OF WILDLIFE
AND
THE WILDERNESS SOCIETY
At the invitation of the House Committee on Merchant Marine and Fisheries,
this statement is being submitted on behalf of Defenders of Wildlife and The Wilderness
Society for inclusion in record of the February 10, 1994 hearing on the Marine Mammal
Protection Act held by the Subcommittee on Environment and Natural Resources. The
statement focuses on the need for Congress to amend the Marine Mammal Protection
Act to provide the U.S. Fish and Wildlife Service (FWS) with affirmative authority to
protect polar bear habitat. The United States is obligated to protect polar bear
ecosystems, especially denning, feeding and migration areas, under Article II of the
Agreement on the Conservation of Polar Bears, an international treaty signed by the
U.S. in 1973.
Defenders of Wildlife is a national conservation organization with over 80,000
members. Polar bear conservation issues, especially those relating to habitat protection,
have long been a high priority of Defenders. For several years we have served on an
informal advisory team established by the FWS in conjunction with the preparation of
the Conservation Plan for the Polar Bear in Alaska , a final version of which should soon
be released by the FWS. Defenders also submitted comments on a recent FWS proposal
to issue regulations allowing the incidental take of polar bears during oil and gas
exploration and development activities in the Beaufort Sea. Concerns expressed by
Defenders regarding the potential impact of the proposed regulations on U.S.
compliance with the Agreement on the Conservation of Polar Bears helped prompt the
FWS to announce its intention to develop the Polar Bear Habitat Conservation Strategy.
Although pleased by FWS plans to develop this Strategy, Defenders of Wildlife shares
concerns expressed in written testimony submitted by the FWS and the Marine Mammal
Commission regarding the current limits of FWS legal authority to fully implement an
effective habitat protection regime.
1244 Nineteenth Street. NW ♦ Washington, DC 20036 ♦ 202-659-9510 FAX: 202-833-3349
149
Recent Developments Concerning Polar Bear Habitat Protection
Several recent developments have helped to underscore the need for Congress to
clarify the FWS' authority to protect essential polar bear habitat. On November 16,
1993, the FWS announced plans to develop a Polar Bear Habitat Conservation Strategy
(58 Fed. Reg. 60402) (Polar Bear Strategy).' The Polar Bear Strategy, if well designed
and fully implemented, has the potential to be an effective means of safeguarding
essential polar bear habitat. It can also assure that the United States acts in full
accordance with the habitat protection mandate contained in the Agreement on the
Conservation of Polar Bears. Finally, an effective Polar Bear Strategy would serve as a
model for other Arctic nations, which collectively have the responsibility of safeguarding
the world's polar bear populations.
Congressional action to provide the FWS with additional authority to protect
polar bear habitat could not come at a more important time. Apart from the need to
clarify the legal basis for an effective Polar Bear Strategy, the Department of the Interior
and the State of Alaska continue to allow substantial oil and gas leasing in the waters off
the coast of northern Alaska. In recent years, respected individual scientists, the Marine
Mammal Commission and the FWS have all expressed concern about the potential
impacts of oil and gas activities on polar bear populations. Finally, an exhaustively
researched and comprehensive legal review, completed for the Marine Mammal
Commission just a few months ago, concluded that the FWS lacks affirmative authority
to regulate polar habitat under the MMPA.
Biological Considerations in Protecting Habitat
Polar bears inhabiting the U.S. Arctic are divided into two overlapping
populations. Both populations are located in the Arctic Ocean, adjacent to Alaska's
northern coast. The northern, or Beaufort Sea, population is estimated to be 1,800
individuals. The western, or Bering-Chukchi Sea, population includes about 3,200
animals. 2 Individuals in these populations spend most of their lives on pack ice well off
shore from the coast of northern Alaska. Bears in the Chukchi population make
extensive north-south migrations in the United States and Russian Territories. In the
Beaufort Sea, polar bears make extensive east-west movements between the United
1 In a subsequent Federal Register notice (58 Fed. Reg. 68659) issued on December 28, 1993, the FWS
referred to the Strategy as a "Polar Bear Habitat Protection Strategy."
2 M. Beattie, Testimony Before the House Subcommittee on Environment and Natural Resources
(February 10, 1994).
150
States and Canada. 3 Open water or active ice areas which persist throughout winter and
early spring are preferred hunting and feeding areas for polar bears, which eat primarily
ringed seals. These open water areas are called "polynyas" and run parallel to the
coastline. 4
Maternity denning habitat is especially important to protect because, as noted by
the FWS, this is "where reproductive success can most easily be altered." 5 Pregnant
female polar bears typically build maternity dens in October or November, give birth to
one or two cubs in December, and remain inside the den until March or early April.
During this period, the new born cubs depend on the den and their mother for
protection. Successful rearing requires a relatively undisturbed denning environment 6
The coastal plain of the Arctic National Wildlife Refuge and Russia's Wrangel Island
are two areas known to be especially important polar bear denning habitat of the United
State's two populations of polar bears. In the Beaufort Sea, the FWS has found that
43% of radio collared pregnant females come on shore to den within the Arctic National
Wildlife Refuge. 7 This represents a significantly higher concentration of polar bear dens
than would be expected if dens were distributed evenly across the coast. Apart from the
fact that Wrangel Island is an especially important denning area for members of the
Chukchi Sea population, less is known about other preferred denning locations for that
population.
Current Threats to Polar Bear Habitat
The protection of key polar bear ecosystems, especially denning, feeding and
migration areas, from industrial activities is vital to the long-term conservation of U.S.
polar bear populations and to the fulfillment of U.S. treaty obligations. As the FWS
recently noted: "Human activities in the Arctic, particularly those related to oil and gas
exploration and development, may pose risks to polar bears and other wildlife."
Moreover, the Marine Mammal Commission expressed concern about the impact of oil
3 FWS, Draft Conservation Plan for the Polar Bear, 13 (December, 1993) ("FWSPjan").
' I. Stirling, Polar Bears , 63 (1988).
5 FWS Plan at 17.
6 Steven Amslrup & Douglas DcMastcr, Polar Bear , in Marine Mammal Commission, Selected Marine
Mammals of Alaska 45 (1988).
7 FWS Plan , at 18.
8 FWS Plan , at 18.
151
and gas activities in a 1989 report. 9 Further, in 1991 congressional testimony, polar bear
expert and Marine Mammal Commissioner Jack Lentfer noted: "Any new activity that
adversely affects denning would likely decrease cub survival and thereby lower
recruitment and cause the population to decline." 10 In commenting on proposals to
permit oil exploration and drilling on Alaska's coastal plain, Mr. Lentfer added: "A
prohibition on oil and gas development on the refuge is especially necessary in order to
protect polar bears during the denning period." 11 While the Chukchi and Beaufort Sea
populations appear stable, the fact that polar bears have low reproductive rates and are
easily disturbed by the noise, sights and smells of human activities make them highly
susceptible to population crashes.
The level of oil exploratory activity in the Arctic Ocean waters off the coast of
northern Alaska has been relatively low in recent years. Over the next five years,
however, the level of oil and gas company activity may increase as exploration and
development continues and more state and federal lands and waters are offered for
lease. Oil industry documents recently cited by the FWS estimate that, in the Beaufort
Sea over the next five years, 28,000 miles of seismic exploration and 2-19 exploratory
wells are planned for the open-water, and 7,000-10,000 miles of seismic exploration and
5-15 exploratory drilling operations are planned on the coastal plain and ice-covered
waters. 12 The FWS has noted that winter activities "have a far greater possibility of
having a detrimental impact on the polar bear," 13 yet the incidental take regulations
issued on November 16, 1993 for the Beaufort Sea cover oil and gas exploration,
development, and production year-round. 14 Moreover, as the FWS has pointed out:
"Future oil discoveries, if determined to be economically viable, could change the level
of activity." 15 Rising oil prices or a major find in the Chukchi or Beaufort Sea could
dramatically increase the level of oil and gas activity in the region and directly increase
the risk to polar bears and their habitat.
* Marine Mammal Commission. Workshop on Measures to Assess and Mitigate the Adverse Effects of
Arctic Oil and Gas Activities on Polar Rears (1989).
10 J. Lentfer, Testimony Before the House Subcommittee on Fisheries and Wildlife Conservation and
the Environment (June II, 1991).
"]±
12 58 Fed. Reg. 60405 (199.1).
" 58 Fed. Reg. 60406 (1993).
' 4 58 Fed. Reg. 60402 (1993).
15 FWS Plan, at 18.
152
Risks to Polar Bear Denning Habitat
Research has shown that polar bears are especially vulnerable during denning.
Because of their low reproductive rate, successful denning is crucial to the well-being of
polar bear populations. Human disturbance can cause female bears to abandon their
dens, an action likely to result in the death of their cubs. There are a number of
documented instances of polar bears emerging prematurely from their dens after being
disturbed. In fact, one such disturbance occurred in the Arctic Refuge in 1985. 16 In
that case, vehicles supporting an exploratory oil well were the source of the disturbance.
Oil company helicopters, ships, road construction and traffic, seismic surveys, drilling and
oil transport activities are all potential sources of denning disturbance.
Risks to Polar Bear Feeding and Migration Routes
In addition to the harm caused by disrupting denning activities, oil and gas
exploration activity may also disturb polar bear feeding and migration patterns. Polar
bears may be harassed by aircraft, ships and other vehicles. Bears may be forced to
avoid favored feeding areas and migration routes, or, alternatively, be attracted by the
sights and smells of human activity, thus increasing the possibility of dangerous human-
bear encounters. In addition, polar bear habitat can be also be damaged or destroyed by
dumping, dredging, drilling, and construction of platforms, pipelines, roads, and support
facilities.
Oil Spills
The polar bear, its food, and its habitat could be severely impacted by acute and
chronic oil-spills. According to the FWS, "Bears which have been fouled by oil may
suffer thermo-regulatory problems, ingest oil, and may exhibit other detrimental effects
such as inflammation of the nasal passages or central nervous system. Bears that contact
oil are likely to die." 17 Although the FWS may believe that the probability of a major
spill is low, the agency has admitted that the impact of such a spill on polar bears and
their Arctic ecosystem would be substantial. 18 Furthermore, the capability of oil
companies cleaning up a major spill in the - Arctic is highly questionable. Not only could
extreme weather conditions make it difficult to get to the spill site, but oil trapped in ice
would be very hard to recover."
16 The Arctic Dispatch (March 14, 1985).
17 58 Fed. Reg. 60407 (1993).
18 58 Fed. Reg. 60406 (1993).
" For additional background on the risks of oil spills in Arctic waters, see generally Greenpeace. Oil in
Arctic Waters: The Untold Story of Offshore Drilling in Alaska (1993).
153
U.S. Obligations Under the Agreement on the Conservation of Polar Bears
The Agreement on the Conservation of Polar Bears was formally ratified by the
U.S. Senate in 1976. Five Arctic nations are signatory to this treaty: the United States,
Canada, Russia, Norway and Denmark. The treaty was prompted by concern that,
without immediate international action, the polar bear might become endangered.
Through their participation in the Agreement, Arctic nations assumed a number
obligations, including restrictions of the taking polar bears and habitat protection. The
obligation of signatory nations to protect polar bear habitat is contained in Article II,
which states:
Each Contracting Party shall take appropriate action to protect the
ecosystems of which polar bears are a part, with special attention to habitat
components such as denning and feeding sites and migration patterns, and
shall manage polar bear populations in accordance with sound conservation
practices based on the best available scientific data.
A December 1993 legal review conducted for the Marine Mammal Commission
(MMC) entitled Reconciling the Legal Mechanisms to Protect and Manage Polar Bears
Under United States Laws and the Agreement to Protect Polar Bears notes that Article
II establishes "three obligations" on the part of signatory nations:
1) to take "appropriate action to protect the ecosystem of which polar
bears are a part;"
2) to give "special attention to habitat components such as denning and
feeding sites and migration patterns;" and
3) to manage polar bear populations in accordance with "sound
conservation practices" based on the best available scientific data. 20
According to the MMC Legal Review :
[T]he ecosystem and habitat requirements of Article II go beyond the protection
of the area actually occupied by bears. Instead, it applies to all components of
the Arctic environment. The Agreement makes the protection of these areas a
mandatory duty. It appears, however, by providing that "appropriate action"
should be taken to protect these areas, the parties intended this concept to be a
20 D. Baur, Reconciling Ihc Lcy.nl Mechanisms to Protect and Manage Polar Bears Under United
Slates Laws and the Agreement for the Conservation of Polar Bears (1993) (" MMC Legal Review ") at 42.
NOTE: Excerpts from this document are included as an attachment to this statement.
154
flexible affirmative duty, rather than a carefully circumscribed mandate to take
certain actions. 21
While it was generally assumed at the time of Senate ratification that the
Agreement would be implemented domestically through the Marine Mammal Protection
Act (MMPA), this Act insufficiently protects polar bear habitat. As noted in the MMC
Legal Review :
[T]he United States lacks any legal authority that confronts polar bear
habitat/ecosystem protection head on. . . . [Current authorities] do not provide
affirmative means or duties to protect polar bear habitat and the ecosystem of
which it is a part. 22
Congressional Action Is Needed
FWS Should be Given Affirmative Authority to Protect Polar Bear Habitat
Despite the requirements of the Agreement on the Conservation of Polar Bears,
neither Congress nor the U.S. Fish and Wildlife Service has developed a proactive
regime to protect polar bear habitat in the 18 years since the Senate ratification. As
previously noted, the FWS is finally in the process of developing a Polar Bear Habitat
Conservation Strategy, which it expects to complete by June 1995. To assure that the
FWS has clear legal authority to take the actions it determines are necessary to protect
polar bear habitat fully, Congress should amend the MMPA. Such an amendment
should give the FWS full affirmative authority to protect essential polar bear habitat
both on land and in the waters off the coast of Alaska. Clear authority for onshore
areas will assure that the FWS can protect key land denning areas. Additional offshore
authority will assure that the FWS can protect other important denning, feeding and
migration areas that may be identified by the Polar Bear Strategy.
During the final negotiating session for the Agreement on the Conservation of
Polar Bears, Curtis Bohlen, Chief of the U.S. delegation, told the other negotiators that
the United States intended the treaty to designate "a large portion of the Arctic region
as an area where the polar bear would enjoy total protection." 23 He added: 'Anything
less would be unacceptable to the American people, for whom the polar bear has
become both an example of wanton killing for the sake of short-term economic gain and
21 MMC Legal Review al 45.
" MMC Legal Review at 129-130.
° Final Acl and Summary Record of: The Conference to Prepare and Agreement on the Conservation
of Polar Bears 19 (1980).
155
8
a symbol of the fight to stop the continuing destruction of man's own ecosystem." 24 We
submit that the time has come for Congress to give the U.S. Fish and Wildlife Service
the authority it needs to protect polar bear habitat and to make good on an important,
but long overlooked, wildlife treaty obligation.
Congress Should Not Deregulate Oil Company Activities Affecting Polar Bears
In addition to amending the MMPA to improve the regime for polar bear habitat
protection, the Committee should make sure that it does not reduce the existing
statutory regime used to regulate oil and gas activities in polar bear habitats.
Specifically, Section 101(a)(5)(A) of the MMPA provides the FWS with authority to
review and regulate some of the potential impacts of oil company activities on polar
bears and, to a certain extent, polar bear habitat. Although Congress should supplement
this provision by providing the FWS with clear and affirmative authority to protect polar
bear habitat directly, Section 101(a)(5)(A) serves as an important means of regulating oil
and gas activities. The provision also provides a primary statutory basis FWS is using to
develop a Polar Bear Habitat Conservation Strategy. For these reasons, we strongly
oppose deregulatory proposals to create a separate process for oil company activities
that harass polar bears. Since lethal takes resulting from oil and gas activities are
prohibited under the Polar Bear Agreement, all petitions for the incidental taking of
polar bear submitted by oil companies will be for so-called "harassment trkes." Since,
with respect to the impact of oil company activities on polar bear denning behavior, the
distinction between harassment and lethal taking is a very fine one (i.e. harassment takes
are likely to be fatal to polar bear cubs), it is wholly inappropriate to change the existing
regulatory regime. Moreover, as noted above, such a change might call into question
FWS' statutory basis for developing a Polar Bear Habitat Conservation Strategy.
Congress Should Not Allow the Importation of Polar Bear Trophies
Finally, we oppose proposed amendments to Section 104 which would allow the
importation of polar bears trophies from Canada. We believe that such an amendment
is unnecessary in view of the existing waiver provision contained under Section
101(a)(3)(A) of the MMPA. This waiver provision assures that any import would be
conducted in a biologically sound manner. Moreover, such an amendment runs counter
to the wildlife protection intent of the Marine Mamma] Protection Act. There is simply
no compelling reason to set a precedent that undermines the protective nature of one of
this nation's most important wildlife statutes.
We appreciate the Committee's interest in this matter and urge the committee to
address this concern during the reauthorization of the Marine Mammal Protection Act
by adopting appropriate amendments to clarify the FWS' authority in this area.
156
Excerpts from
RECONCILING THE LEGAL MECHANISMS
TO PROTECT AND MANAGE
POLAR BEARS UNDER UNITED STATES
LAWS AND THE AGREEMENT FOR
THE CONSERVATION OF POLAR BEARS
Prepared for the
Marine Mammal Commission
By
Donald C. Baur
Perkins Coie
607 Fourteenth Street, N.W.
Suite 800
Washington, D.C. 20005
December "».0, 1993
109901 -970O/DA9J0320 016)
157
EXECUTIVE SUMMARY
In consecutive years - 1972 and 1973 - the United States
enacted landmark legislation to protect marine mammals (the
Marine Mammal Protection Act ("MMPA")) and joined with four
other countries in an international agreement to protect the
world's polar bear populations (the Agreement on the
Conservation of Polar Bears) . See Addendum. Although both
initiatives borrowed heavily from the concepts and goals of
each other (deliberations leading up to the MMPA and the
Agreement occurred concurrently) , the provisions of the final
law and international treaty did not result in a perfect fit.
In some respects, the MMPA has proven to be more protective
than the Agreement, and vice versa. These inconsistencies
persist today, even though section 108(a)(4) of the MMPA
requires the federal government to seek comparable levels of
protection for marine mammals under the MMPA and international
agreements, and Article VI. 1. of the Agreement requires each
party to enact legislation to fulfill its requirements.
Polar bears remain at risk from human activities. In the
early 1970s, the principal threat was from hunting and the
cumulative effect of other lesser sources of impacts. Under
the Agreement and the MMPA, the threats posed by sport hunting
have been largely eliminated. Other threats exist, however.
These include: the possibility of injury or death to bears
caused by development activities; damage or destruction to
polar bear habitat from those activities; contamination of the
(OW01-9700/DA930320.016) -IV- 12/2003
79-705 0-94-6
158
food chain of which polar bears are a part; harassment as a
result of increased human presence in areas occupied by polar
bears, especially denning areas. There also is the potential
that Native take for subsistence/handicraft purposes could
adversely impact polar bear populations. At present, there is
no evidence that Native take is adversely affecting polar bear
populations. However, a better understanding of these impacts
is needed and if other sources of impacts on polar bear
populations increase, the resulting cumulative effects could
cause population declines.
To fully address these threats to polar bear population
stocks and provide the level of protection contemplated by the
drafters of the MMPA and the Agreement, both legal authorities
would have to be amended. By carrying the strong points of
the MMPA and the Agreement forward into each other, a uniform
set of legal principles would be established to govern both
international and United States domestic efforts to protect
and conserve polar bears. Policy decisions must be made
whether it is appropriate to pursue some or all of the changes
that would be reguired to bring the MMPA and the Agreement
into full conformance with each other.
To more fully implement the Polar Bear Agreement, a
number of amendments could be undertaken. Legal authority to
protect polar bear habitat could be expressly set forth. Such
authority is not directly provided for in the MMPA or other
United States laws. One way to accomplish this is by amending
(09901 -9700/DA930320.0I6] -V- 12/20/93
159
the definition of "take" in the MMPA to add the prohibited act
of "harming" marine mammals. Under the Endangered Species
Act, "harm" has been construed to include destruction or
degradation of habitat, and this prohibition could be carried
forward to the MMPA. In addition, the rulemaking authority of
the MMPA could be amended to authorize the Secretary to
designate protected areas where activities that would
adversely affect poiar bears (or other marine mammals) would
be prohibited or restricted such as, for example, to prevent
depletion. Finally, efforts could be made to strengthen the
implementation of existing laws that apply to habitat
protection, such as the Outer Continental Shelf Lands Act.
In addition to providing for habitat protection, the MMPA
could be brought into conformance with the Polar Bear
Agreement by prohibiting the following: the use of aircraft
and large motorized vessels to take polar bears, including by
Alaska Natives; the taking of cubs and females with cubs,
including by Alaska Natives (if desired to conform with the
non-binding Resolution to the Agreement) ; the taking of polar
bears from the wild for public display purposes; and lethal
incidental take. Finally, the MMPA could be strengthened to
more fully effectuate the Agreement by imposing affirmative
duties on the federal government to take the necessary actions
to protect polar bears (as well as other marine mammals) .
Such a requirement exists in the Endangered Species Act and
other environmental laws, and it could be carried forward to
[09901-9700/DA930320 016} -Vi- XTHXtm
160
the MMPA. In addition to these legislative actions, steps
could be taken to assist Alaska Natives in their efforts to
regulate their polar bear harvests, such as is currently being
done for the Beaufort Sea polar bear population in a
cooperative agreement between the North Slope Borough Fish and
Game Management Council and the Inuvialuit Game Council of
Canada's Northwest Territories. Native communities in Alaska
have a strong record of self-regulation in order to ensure the
long-term viability of wildlife populations. This tradition
could be bolstered by the federal government to advance the
goals of the Agreement.
There are also amendments that could be made to the Polar
Bear Agreement to make it consistent with the MMPA. These
changes to the Agreement include: adding a prohibition on
harassment; authorizing limited forms of incidental take (if a
harassment prohibition is added) ; and authorizing control of
nuisance animals. As in the case of amendments to the MMPA,
policy decisions need to be made on the value of pursuing
these amendments and the need for conformance between the
Agreement and the MMPA in every respect.
Obviously, not all of these changes are of equal
importance. The purpose of this report, as requested by the
Marine Mammal Commission, is to identify areas of
inconsistency and discuss possible solutions, including
amendments to existing laws. Ultimately, policy judgments
will have to be made on whether and, if so how, to pursue the
actions identified in this report.
10990 1 -970O/DA930320 016) -Vii- 12/20/9!
161
The following excerpt Is from the report section
entitled The Polar Bear Agreement"
2. Habitat Protection
Article II of the Polar Bear Agreement imposes three
obligations on the parties:
1) to take "appropriate action to protect the ecosystem
'of which polar bears are a part;" 140
2) to give "special attention to habitat components such
as denning and feeding sites and migration patterns;" 141 and
3) to manage polar bear populations in accordance with
"sound conservation practices" based on the best available
scientific data. 142
The IUCN drafts limited Article II to the protection of
unspecified habitat components located within the boundaries
of each party. It also required international cooperation to
protect polar bears that migrate across international
boundaries. The parties greatly expanded this Article by:
1) requiring efforts to protect the overall ecosystem upon
which polar bears depend; 2) specifying the habitat components
140 Id. Art. XX.
141 la,.
|O990l-rX)0/DA9XB3O.OI6| -4 2- 12/30*3
162
of greatest concern; and 3) requiring management based on
"sound conservation practices."
The habitat and ecosystem protection goal of Article II
received special consideration at the 1981 Consultative
Meeting of the Parties. 143 The contracting parties agreed at
the 1981 meeting that more had to be done to protect the
specified habitat areas. They determined, for example, that
national efforts should be directed towards identification of
important denning and feeding areas. They also agreed that
more needed to be done to protect such areas "from disturbance
and destruction." 144 The parties singled out "the desirability
of providing adequate protected zones around identified
denning areas, where disturbances due to human activities
otherwise may occur." 145 This goal was stated clearly by the
head of the United States delegation to the 1973 meeting of
the parties, Mr. Curtis Bohlen, who stated the desire of the
United States to achieve the "designation of a large portion
of the Arctic region as an area where the polar bear would
enjoy total protection." He also cited the need for "the
protection of the polar bear's ecosystem including his habitat
143 IUCM, Consultative Meeting of the Contracting Parti.ee to the
Agreement on the Conservation of Polar Beare (1981).
144 1£L «t 3.
145 ld,.
(0WOI-970O/DAV3OJ20 0I61 -43-
163
and food supply; and particularly the preservation within
national areas of critical denning areas." 146
With regard to the ecosystem protection obligation, the
parties recognized the need to provide protection to the
Arctic region "as a whole." Consideration was given to the
need to use the "same lines as the polar bear cooperation is
based on" to provide "improved protection of flora, fauna and
nature in the Arctic." 147 Specific reference was made to the
IUCN World Conservation Strategy, which included a proposal
for "developing agreements among the Arctic nations on the
conservation of the region's vital biological resources based
en the principles and experience of the Agreement on
Conservation of Polar Bears." 148
Included in the record of the 1981 meeting is a statement
by Dr. Lee Talbot, the IUCN representative, who noted that the
concept of Arctic ecosystem protection began with the 1965
Polar Bear Specialist Group. Dr. Talbot, observed that,
"[t]he modern search for and exploitation of non-renewable
resources, which was just getting underway fifteen years ago,
has continued and intensified, with major impacts on the
146 Final Act and Summary Record of; The Conference to Prepare an
Agreement on the Conservation of P olar Beam 19 (19801 f " Final Act /Summary
Record- 1.
'li. at 73.
[09901 -970O/DA9JO32O 0I6| -44-
164
social structures and economics, as well as the environment of
a no longer remote Arctic." 149 In light of these changes, he
observed :
If there were gaps and missing pieces to start
with in our knowledge and actions about polar
bears, there are even more now in a much
broader context, with changes occurring more
rapidly and so much more at stake. If we were
able to gain by cooperating and exchanging
information about polar bears the arguments do
indeed seem persuasive for extending this
pattern of mutual help to include a wider range
of present day Arctic problems. 150
As these statements suggest, the ecosystem and habitat
requirements of Article II go beyond the protection of the
area actually occupied by bears. Instead, it applies to all
components of the Arctic environment. The Agreement makes the
protection of these areas a mandatory duty. It appears,
however, by providing that "appropriate action" should be
taken to protect these areas, the parties intended this
concept to be a flexible affirmative duty, rather than a
carefully circumscribed mandate to take certain actions. 151
Because Article II provides that such actions "shall" be
taken, it is clear that the parties have an obligation to
14> Id. at 75.
1S0 Id. at 75-76.
151 Tha explanatory notat on tha July and Saptambar 1973 IOCS draft*
maka it claar that tha word "appropriate" waa uaad to aignal that
contracting partiaa raaarva tha right to puraua "diffaring" approachaa to
fulfilling thair ccanitaenta undar tha Agreement. Sis Polar Baar
Agreement, July, Saptambar 1973 ZUCN Orafta, mUXM n.120, 121, at 2, 3.
I0WOI-970O/DA9MJ 20.016)
.45. I2/20V9)
165
implement the "appropriate" habitat and ecosystem protection
actions.
There is no discussion of the meaning of the phrase
"sound conservation practices" in the background documentation
of the Agreement. In a resolution passed by the parties
during the 1973 Oslo meeting, however, it was specified that
the taking of females with cubs and their cubs would be
contrary to "sound conservation practices." 152
166
The following excerpt is from the report section entitled
"Reconciling United States Laws and the Polar Bear Agreement"
5. Habitat and Ecosystem Protection
There are a variety of legal measures available to the
United States to protect polar bear habitat. MMPA regulations
and letters of authorization issued under section 101(a)(5)
can prohibit or restrict activities in important habitat areas
if they would involve the take of polar bears. Because the
greatest threat to polar bear habitat results from the
Harassment of bears in denning areas, taking restrictions
under section 101(a)(5) might address a major concern under
Article II of the Agreement. OCSLA leases, exploration
permits, and development plan authorizations could be
conditioned in the same way. National Environmental Policy
Act reviews can identify threats to polar bear habitats, and
any resulting decisions can be appropriately tailored to avoid
such impacts. Finally, the CZMA can be applied to restrict
development in coastal areas that would harm such habitat.
Despite these available mechanisms, the United States
lacks any legal authority that confronts polar bear
habitat/ecosystem protection head on. All of the above-cited
authorities are preventative in nature; they do not provide
affirmative means or duties to protect polar bear habitat and
the ecosystem of which it is part. Thus, although it cannot
be said that the United States has failed to comply with the
Agreement to date by allowing polar bear habitat to be
adversely impacted, neither can it be said that the United
(0990I-9700/DA930J20.0I6I -129- 12/KVW
167
States has readily available tools that would allow it to take
steps to set aside polar bear habitat/ecosystems so that they
are fully protected as envisioned by the Agreement.
Such authority is most directly applicable to habitat
impacts that cannot be regulated under the MMPA taking
prohibition. These include: permanent damage or destruction
to denning areas; long-term occupation of such areas
- effectively rendering them unusable by bears; obstructions to
bear movement routes that cause them to avoid or abandon
preferred habitat locations; contamination of feeding areas;
degradation of the ecology of the Arctic causing the
contamination of prey species; cumulative impacts from
development activities; and releases of contaminants that
expose bears to the risk of injury or harm, such as the
recently documented exposure to PCBs and other contaminants. 350
There are several forms of legal authority that could be
established to provide the United States with tools to achieve
permanent habitat protection for polar bears, should a policy
decision be made to pursue such a result. Although this
authority could be limited to polar bear habitat/ecosystems,
it also could be beneficial for other marine mammals in light
"See, e.g. . Doug Mellgren, PCBb Suspected in Fewer Polar Bear
Birtha, Anchorage Daily NewB . Jan. 24, 1993, at PI; J. Lentfer and
W. Galeter, Mercury in Polar Bears from Alaska . Journal of Wildlife
Diseases 338 (1987); J. Lentfer, Environmental ContaminantB and '. , -» nites
in Polar Bears. Final Report to Alaska Dep't of Fish and Game 7-lj (1976).
(099O1-970O/DA93032O.0I6I -130-
168
of the MMPA general statements of policy that promote habitat
protection for all species and stocks. The most obvious of
these is the inclusion of important habitat areas in protected
areas that are off-limits, at least seasonally, to activities
that could adversely affect polar bears. Such protection
currently is provided in various locations in the Arctic by
the Bering Land Bridge National Preserve, Cape Krusenstern
National Monument, and Arctic National Wildlife Refuge.
Another possibility is the use of the MMPA's rulemaking
authority to designate protected zones for the purpose of
preserving habitat. Although an argument can be made that
such authority exists in section 112(a) of the MMPA, 351 it has
been used for this purpose only twice, — by FWS to protect
manatees by designating speed boat zones in Florida waters and
by the National Park Service to establish cruise ships limits
and restricted areas in Glacier Bay. In both instances,
however, the MMPA's rulemaking power was used in conjunction
with other legal authorities. Moreover, both sets of
regulations were established to prevent takes from occurring,
not to protect habitat itself. In the November 1993
incidental take regulations for the Beaufort Sea and adjacent
coast, FWS suggests that there is authority to implement the
Polar Bear Habitat Conservation Strategy, but the source of
that authority is not identified. 352
'16 U.S.C. S 1382(d)
109901 -970O/DA93O320 016) -131-
169
TESTIMONY BEFORE THE HOUSE COMMITTEE ON
MERCHANT MARINE AND FISHERIES
SUBCOMMITTEE ON ENVIRONMENT AND
NATURAL RESOURCES ON THE REAUTHORIZATION OF THE
MARINE MAMMAL PROTECTION ACT
by
LARRY MERCULIEFF, MANAGER, CITY OF ST. PAUL, ALASKA
on behalf of
THE BERING SEA COALITION
and
THE CITY OF ST. PAUL, ALASKA
February 10, 1994
Prepared by
PERKINS COIE
607 Fourteenth Street, N.W.
Suite 800
Washington, D.C. 20005
79-705 0-94-7
170
CONTENTS
I . INTRODUCTION 1
II. BACKGROUND ON THE ECOSYSTEM HEALTH AND .
STABILITY GOAL OF THE MMPA 11
A. REFERENCES TO ECOSYSTEM PROTECTION IN THE
TEXT OF THE MMPA 11
B. LEGISLATIVE HISTORY REFERENCES TO
ECOSYSTEM PROTECTION 16
III. CONCERN OVER MARINE ECOSYSTEM DEGRADATION
EXPRESSED UNDER OTHER LAWS 27
IV. DECLINE OF THE BERING SEA ECOSYSTEM 36
V. OTHER MARINE ECOSYSTEMS IN DECLINE 41
VI . PROPOSED MMPA AMENDMENT 45
171
I. INTRODUCTION
Thank you for this opportunity to present testimony on
the reauthorization of the Marine Mammal Protection Act. My
name is Ilarion Merculieff and I am the Manager for the City
of St. Paul in Alaska's Pribilof Islands, as well as
coordinator for the Bering Sea Coalition.
St. Paul Island is one of the Pribilof Islands located in
the eastern Bering Sea. It is the home for approximately 750
residents, most of whom are Aleuts. Since time immemorial,
Aleuts have depended upon the bounty of the sea for their
sustenance, livelihood, and culture. As a result of its
location, St. Paul Island is at the center of one of the
world's most biologically productive marine environments.
This region is the home for many species of marine mammals,
sea birds, and commercially valuable fish and shellfish.
These biological resources are the foundation of the
subsistence economy and culture of the residents of the
Pribilof Islands and the Bering Sea coastal region. They are
also the foundation of a commercial fishery that contributes
at least ten percent of the world's fishery production. These
fisheries are essential to the future of St. Paul and many
other Bering Sea coastal communities. The future economic
growth and stability of St. Paul, like many other Bering Sea
172
communities, is inextricably linked with the long-term
viability of a successful commercial fishing industry and a
healthy Bering Sea ecosystem.
The Bering Sea Coalition consists of 57 coastal
communities in Alaska stretching from Nome to Atka. It was
first formed in 1991 in an effort to bring together indigenous
peoples with a common concern in issues related to the Bering
Sea. The Coalition serves as: 1) an informal sharing
network; 2) an organization that can be a force in
decisionmaking processes and scientific fora; 3) an
educational mechanism to inform others of the value of
indigenous cultures in protecting and managing resources and
teaching native spirituality; 4) a vehicle for obtaining
research funding; 5) an organization to participate in
research programs; and 6) an outreach effort to establish a
link between Alaskan and Russian coastal communities for the
purpose of developing cooperative efforts to protect shared
cultural and natural resources.
The Bering Sea Coalition and the City of St. Paul are
deeply concerned over the current population declines and
ecosystem-wide ecological injury evident in the Bering Sea
region. If the current trends persist, the subsistence and
cultural patterns that have occurred for centuries in the
towns and villages along the Bering Sea will be threatened, as
will the economic base that holds the key to the future well-
[19653-O001/DA94O590.06O1 -2- 3/3/94
173
being of these communities. And, just as these communities
will suffer if this emerging ecological crisis is not abated,
so will the other economic and environmental interests that
benefit from the resources of the Bering Sea. A resource of
national and international significance is at stake, and
immediate action is imperative.
Throughout the 1700' s and 1800' s, the marine mammal
resources of the Bering Sea served as the basis for a thriving
trade in pelts and other byproducts. Largely unregulated
trade in these marine mammal products lead to the near
extinction of several species. As a result, much of the fur
trade and the economic wealth it produced was brought to an
end in the early 1900' s.
Today, the resources of the Bering Sea are again
providing for flourishing economic activities, including a
large-scale commercial fishing industry and a growing tourist
industry. These resources also are essential for subsistence
purposes for Alaskan Natives. The Bering Sea resources that
support this economic development and subsistence use are
beginning to show severe signs of stress, once again posing
the possibility that unwise use of the natural resources of
this region will, as with the fur trade, cause thriving
economic opportunity to decline or come to an end and diminish
the availability of subsistence resources.
(19633-0001/DA940M0.060) -3-
174
Since the mid-1970s, Bering Sea populations of Northern
fur seals, Steller sea lions, harbor seals, and several
species of fish-eating seabirds and sea ducks have all
experienced substantial, unexplained declines in their number
indicative of an ecosystem-wide injury. The Steller sea lion,
now classified as a threatened species under the Endangered
Species Act ("ESA"), 1 has declined from more than 100,000
animals in the 1970s to only 35,000 today. Since the late
1950s, the number of Northern fur seals has been reduced from
about 1.8 million to about half that amount, and the species
is now classified as depleted under the MMPA. 2 The Bering
Sea/Gulf of Alaska harbor seal population is also experiencing
a dramatic decline, and ESA listing may be forthcoming.
Seabird populations have also been impacted, with some
colonies of murres and kittiwakes reduced by as much as fifty
percent in the period from 1976 to 1991. Spectacled eiders, a
large-bodied sea duck, have also declined drastically since
the 1960s and are listed as threatened. The wintering area of
Spectacled eiders is not know but is probably in the Bering
Sea near the ice edge. Heavy metal contaminants are also
beginning to appear in substantial levels in walrus meat and
other marine wildlife, raising concerns that marine pollution
is affecting the health not only of living marine resources
^o c.f.r. S 17.11.
2 50 C.F.R. S 216.15(c).
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but also residents of coastal communities who consume walrus
meat for subsistence purposes. The Bering Sea ecosystem also
involves complex international issues related to shared fish
and wildlife populations with Russia and the international
fisheries in the Bering Sea.
In addition to the adverse impact that improper
management of the Bering Sea can have on the resources of the
region, the threat of legal restrictions imposed under the ESA
and other laws to protect affected species is already becoming
a reality in the Bering Sea region, producing controversy and
resulting in restrictions on resource utilization activities.
For example, the listing of the Steller sea lion under the ESA
has resulted in restrictions on commercial fishing activities.
If additional regulatory measures become necessary to protect
the declining marine resources of this region, the Bering Sea
may eventually become as embroiled in the conflict between
species protection and natural resource utilization as is
presently being experienced by the Pacific Northwest as a
result of legal measures undertaken or contemplated to
conserve the northern spotted owl, the marbled murrelet, and
several salmon species.
Other marine ecosystems manifest problems similar to
those evident in the Bering Sea. Most of the problems being
experienced in the Bering Sea are also occurring in the Gulf
of Alaska. Off the coast of New England, numerous fisheries
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resources of the Georges Banks region are in serious decline.
In the Chesapeake Bay, waterfowl and numerous commercially
valuable fish and shellfish species are showing significant
population declines. The Caribbean Sea, which produces
fishery resources important to United States, is experiencing,
system-wide degradation. Similar problems are occurring
elsewhere in the world in marine ecosystem areas for which the
United States has important economic and environmental
interests and international agreement obligations.
The problem shared in all of these regions is that
resources are declining on a system-wide basis. The result is
that species and population stocks that are of considerable
commercial, ecological, subsistence, and aesthetic value are
reaching a point where legal restrictions may be, or are
already, necessary in an effort to halt or reverse the
declines. These restrictions can apply not only to the
species in need of protection, but also to the use of other
resources that have a spatial or ecological relationship to
the adversely affected species. For example, fishing
operations that impact the food web of marine ecosystems may
have to be curtailed under the ESA or other laws to protect
other depleted fishery resources, marine mammals, marine
birds, sea turtles, or other marine wildlife species. By
focusing on marine ecosystem-based research and management and
following a proactive approach to identifying ecosystem-based
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problems and responding to them before they become severe, it
may be possible to avoid the need to resort to such costly,
controversial, and after-the-fact regulatory programs.
In this proposal, the Bering Sea Coalition and the City
of St. Paul, Alaska, seek an amendment to the Marine Mammal
Protection Act ("MMPA") to provide the basis for eventually
establishing comprehensive, ecosystem-based protection and
management of living marine resources. The MMPA is the ideal
vehicle for such an amendment in that its primary objective is
to ensure the "health and stability" of the marine ecosystems
of which marine mammals are a part. 3 Although the MMPA
establishes this policy, it provides few of the tools
necessary to achieve this goal. The MMPA also recognizes the
importance of marine mammals and a healthy marine ecosystem to
the subsistence and economic needs of Alaskan Natives. 4
While living marine resources continue to be managed or
protected separately under a variety of laws, such as the
MMPA, the Magnuson Fishery Conservation and Management Act
("Magnuson Act") , the Migratory Bird Treaty Act, and the ESA,
there is no single law that provides for addressing marine
ecosystem issues on a comprehensive basis. As demonstrated by
the current biological problems being experienced in a number
3 16 U.S.C. S 1362(6).
4 Id. SS 1371(b), 1402(b)(7).
119653-0001/DA94OS90.MO) -7-
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of marine ecosystems, it is clear that the species-specific
emphasis of these laws has failed to identify and respond to
ecosystem-based protection and management needs.
The proposal calls for an amendment to the research
requirements of the MMPA. Under the first part of the
proposed amendment, the Secretaries of the Interior and
Commerce, in consultation with the Marine Mammal Commission,
would contract with the National Academy of Sciences to
prepare a report to Congress on the need for marine ecosystem
protection and management. This report would: 1) assess the
status of the health and stability of large marine ecosystems
consisting in whole or part of waters subject to the
jurisdiction of the United States or for which the United
States has international treaty obligations, and identify
those ecosystems that are experiencing system-wide injury;
2) analyze the effectiveness of existing research, management,
and conservation tools to address these problems; and
3) identify the additional actions needed to address the
identified problems. A special process would be established
to utilize Alaska Native organizations and traditional Native
local knowledge in this research, including research on the
use of marine ecosystem resources for subsistence purposes.
The second element of the amendment would authorize
research specifically directed at marine ecosystem problems
and protection needs in the Bering Sea. This research would
[19653-0001/DA940590.060] -8- 3/3/S
179
be conducted by the Secretaries of the Interior and Commerce,
in consultation the Marine Mammal Commission. It would be
undertaken with assistance from affected interest groups,
including Alaskan Natives and coastal communities located on
the Bering Sea. Research on subsistence issues would be
conducted, on request, under contract with qualified Alaska
Native organizations. The goal of this research would be to
obtain baseline data on Bering Sea resources, establish long-
term monitoring programs, and investigate the causes of and
potential solutions to the species declines already documented
in this region. Specific attention would be provided to
marine mammal and marine bird populations, and fish and
shellfish stocks. This research would be undertaken in
locations in Alaska where researchers will have access to the
ecosystem studied, and where the affected environmental
systems can be monitored.
This proposal advances a national and international
agenda. As Secretary Babbitt has declared in his proposal to
establish the National Biological Survey, it is essential to
establish "an anticipatory, proactive biological science
program to enable land and resource managers to develop
comprehensive ecosystem management strategies to minimize
conflicts, litigation, and economic costs." 6
5 Preaa Releaae, Department of the Interior, 3 (Apr. 8, 1993).
[19653-0001/DA940390.MO] -9-
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Congressman Don Young has recognized the need for
developing adequate biological information on marine ecosystem
[A] lot of what is made decision wise is made
without any real factual biological base. If
there is anything we can do [it] is to get more
of a network of scientists to understand this
problem, out my mouth it sounds very strange,
the ecosystem. But unfortunately we base a lot
of our decisions on our individual [area],
maybe longliners, purse seiners or gillnetters
or whatever it is, without any real knowledge. 6
With regard to the Bering Sea, President Clinton recently
noted:
The Bering Sea, off the coast of Alaska, is one
the Earth's most biologically productive marine
ecosystems. Its fish and shellfish provide 10
percent of the world's commercial catch and
feed many of the people of Asia and North
America. To ensure that these and all other
natural resources will be available for our
descendants, we must carefully manage this
richly endowed region. The difficult task of
protecting the pollution-sensitive Arctic
relies on careful scientific monitoring and
. . . international cooperation. 7
It is in this vein that the proposal set forth by the City and
Coalition carries these themes forward.
B jfagnugaB Fishery Conservation and Management Act Reauthorlzation-
Part II; Hearings on Reauthorization of the Magnuson Fishery Conservation
and Management Act to Ensure the Survival of Our Fishing Industry and Our
Coastal Communities Before the House Comm. on Merchant Marine and
Fisheries . 103rd Cong., 1st Sess. 45 (1993) (statement of Rep. Don Young,
U.S. Rep. from Alaska, and ranking minority member, House Subcomm. on
Fisheries Management).
7 Letter from President Clinton to the International Symposium on the
Ecological Effects of Arctic Airborne Contaminants (September 27, 1993).
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II. BACKGROUND ON THE ECOSYSTEM HEALTH AND
STABILITY GOAL OF THE MMPA
REFERENCES TO ECOSYSTEM PROTECTION IN THE TEXT OF
THE MMPA
In 1972, landmark legislation — the MMPA — was enacted
to protect marine mammals from the direct and indirect effects
of human activities. The MMPA seeks to accomplish this result
through its moratorium on all forms of "taking" ( i.e. .
harassing, hunting, capturing, or killing) marine mammals,
subject to limited exceptions. 8 The goal of the moratorium,
and the research and management programs authorized by the
MMPA, is to ensure that marine mammal species and population
stocks are not permitted to: 1) "diminish beyond the point at
which they cease to be a significant functioning element in
the ecosystem of which they are a part," and 2) "consistent
with this major objective, [that] they should not be permitted
to diminish below their optimum sustainable population." 9
Although these goals serve as the basis for
administration of marine mammal programs under the Secretaries
of Commerce and the Interior, they are actually the MMPA's
secondary objectives. When it passed the MMPA, Congress
recognized the pre-eminent need to ensure the long-term health
of the marine environment as a whole. Throughout the
8 16 O.S.C $ 1371.
' 9 Id. S 1361(2).
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deliberations leading up to passage of the Act, members of
Congress, federal and state officials, scientists, and members
of the public expressed concern with the overall health of the
marine environment and its living marine resources. Concerns
regarding pollution, habitat degradation, over-exploitation of
fisheries and other living marine resources, as well as the
desire to reduce the direct and incidental take of marine
mammals, motivated Congress to pass the MMPA.
In recognition that marine mammals are but one part of
marine ecosystems and that such ecosystems were, even in 1972,
in a serious and rapid state of decline, Congress established
as the primary goal of the MMPA the management of marine
mammals "to maintain the health and stability of the marine
ecosystem." 10 In declaring this policy objective, however,
Congress did not provide any specific authority to advance
this primary goal. For example, no direct authority exists
under the statute to protect marine mammal habitat or
components of such habitat, including prey species. No
research programs are expressly authorized to address marine
ecosystem health and stability issues or the relationship
between marine mammals and other elements of the marine
environment. Perhaps most importantly, no tools are provided
to manage marine ecosystems on a comprehensive basis,
p Id. S 1361(6).
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183
recognizing the inter-related nature of all resources of the
marine environment and the role that marine mammals play in
the dynamics of each such ecosystem. As a result, the
"primary" Congressional objective of the MMPA has, in many
respects, become the MMPA's "forgotten" objective.
The MMPA makes frequent, although only general, reference
to ecosystem protection. The text of the law establishes that
Congress intended to make marine ecosystem health and
stability its over-arching policy goal, as well as an
essential element of MMPA research and management initiatives.
For all of this attention to marine ecosystem protection,
however, the Act gives little impetus to actions designed to
carry out that goal.
Section 2 of the Act, which recites findings and
declarations of policy, contains several references to the
importance of protecting the environment of which marine
mammals are a part. Section 2(2) provides that "[certain]
species and population stocks should not be permitted to
diminish beyond the point at which they cease to be a
significant functioning element in the ecosystem of which they
are a part." 11 Congress also found, in section 2(5) (B) that
"marine mammals and marine mammal products . . . affect the
balance of marine ecosystems in a manner which is important to
' id. S 1361(2),
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other animals and animal products which move in interstate
commerce." 12 Section 2(6) sets forth the MMPA's foremost
objective by stating that "it is the sense of the Congress
that [marine mammals] should be protected and encouraged to
develop to the greatest extent feasible commensurate with
sound policies of resource management and that the primary
objective of their management should be to mainta in the health
and stability of the marine ecosystem ." 13
Section 3 also incorporates ecosystem protection. The
MMPA defines "Optimum Sustainable Population" ("OSP") , for
example, as "the number of animals which will result in the
maximum productivity of the population or the species, keeping
in mind the carrying capacity of the habitat and the health of
the ecosystem of which they form a constituent element." 14
The Secretaries of the Interior and Commerce may, under
the MMPA, authorize takings incidental to certain activities.
The appropriate Secretary may also authorize directed takings.
When requested to do so by individuals who participate in an
activity other than commercial fishing, the appropriate
Secretary may permit incidental takings of small numbers of
marine mammals if they are controlled by regulations "setting
12 Id. S 1361(5) (B).
13 Id. S 1361(6) (emphasis added).
14 Id. S 1362(9).
[196S3-0001/DA940590.060] -14-
185
forth . . . permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable
adverse impact on such species or stock and its habitat." 15
Similarly, the Secretary may issue a general taking or
importation permit, provided that in issuing the regulations
governing such a situation, "the Secretary shall give full
consideration to . . . the marine ecosystem and related
environmental considerations." 16
In the context of international agreements, the Act
emphasizes the importance of protecting regions as opposed to
individual animals. The MMPA encourages the Secretaries,
working through the Secretary of State, to "seek . . .
agreements to promote the purposes of this act with other
nations for the protection of specific ocean and land regions
which are of special significance to the health and stability
of marine mammals." 17
Finally, in a recent addition to the MMPA, the "Marine
Mammal Health and Stranding Response Act," Congress focused
attention on the impacts pollutants in the marine environment
are having on the health of marine mammals. One purpose of
the program established by this Act is to "correlate the
^Idi S 1371(a) (5)(ii)(l).
16 Id. S 1373(b)(3).
17 Id. S 1378(a)(3).
[19653-0001/DA94O590.06O] -15-
186
health of marine mammals and marine mammal populations, in the
wild, with available data on physical, chemical, and
biological environmental parameters." 18 This amendment, passed
partly in response to die-offs of bottlenose dolphins on the
East Coast in the late 1980' s, constitutes legislative
recognition of the dependence of the health of marine mammals
on the health of their environment.
As these statutory references demonstrate, Congress
frequently recognized the relationship between marine mammal
protection initiatives and the health and stability of the
marine environment. Nowhere is the MMPA, however, is the
federal government authorized or directed to take action
expressly for the purpose of protecting the marine ecosystem.
The significance of this lack of authority becomes even more
apparent when the legislative intent underlying the MMPA is
taken into account.
B. LEGISLATIVE HISTORY REFERENCES TO ECOSYSTEM
PROTECTION
The references to ecosystem protection in the text of the
MMPA are the outgrowth of extensive discussion about
environmental problems plaguing the marine environment voiced
throughout the debate on the original MMPA and its
reauthorizations. Indeed, these legislative history
,8 16 U.S.C.A. S 1421(b)(2) (West Supp. 1993),
[19653-O001/DA94O590 060] -16-
187
statements reveal a much broader concern with marine ecosystem
issues than is reflected in the current statutory text.
General references to the need for ecosystem protection
are found throughout the MMPA legislative history. In 1972,
the Senate Commerce Committee considering the MMPA wrote,
" [b]asic life history and population information ought to be
obtained for each marine mammal of concern to the United
States. . . . All of these animals are a part of the ocean
biomass and are important in maintaining an ecological
balance." 19 Six years later, the House Report accompanying
reauthorization legislation stressed the importance of the
research that had been carried out to that point:
This expanded knowledge has enabled us to
better assess the impact of various ocean-
related development activities on marine
mammals. An understanding of these impacts and
of the relationship of marine mammals to their
ecosystem permits the development of programs
to ensure that these species remain a
functioning part of their ecosystem. 20
In the section-by-section analysis of the original Senate
bill in 1971, the report authors noted that the finding
regarding the importance of marine mammals as functioning
parts of their ecosystems included in the Act was meant to
emphasize "the need to protect those geographic areas of
19 S. Rep. No. 863, 92d Cong., 2d Sees. 10 (1972).
20 H.R. Rep. No. 1028, 95th Cong., 2d Sees. 5 (1978)
[19653-0001/DA94O590.060) -17-
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significance for each species of marine mammals from adverse
activities." 21
In a letter to the Department of State, Congressman
Dingell stressed this theme by stating:
The disappearance or low population levels of
certain species of marine mammals would clearly
have implications for the ecosystems of which
these mammals have been a significant part.
Also, the level of pollution of the world's
oceans will unquestionably have some effect
upon them which might well be to increase the
environmental stress limiting their growth and
survival rates. 22
The State Department replied:
[T]he disappearance or serious reduction in the
population levels of marine mammals can affect
the stability and viability of marine
ecosystems which in turn can lead to a more
generalized disruption of the marine
environmental balance. If we are to preserve
the oceans, and if their resources are to be
preserved for mankind, programs must be
developed that view the oceans and their flora
and fauna as a totality . . . . 23
21
S. Rep. No. 863, 92d Cong., 2d Seas. 11 (1972).
22 Letter from John Dingell, Chairman of the House Subcommittee on
Piaheries and Wildlife Conservation, to Christian Herter, Special Assistant
to the Secretary of State for Environmental Affairs (August 17, 1971),
reprinted in »«»»-<«« M^imy 1 ■» Hearings on H.R. 1 0420. et al.. Before the
Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on
Merchant Marine and Fisheries , 92d Cong., 1st Sess. 200 (1971) [hereinafter
House Hearings ] .
23 Letter from Harrison M. Symms, Acting Assistant secretary of State
for Congressional Relations, to John Dingell, Chairman of the House
Subcommittee on Fisheries and Wildlife Conservation (not dated), reprinted
in House Bearings at 200-201.
[19633-0001/DA94O590.060] -18-
189
These general themes were repeated in individual discussions
pertaining to the relationship between marine mammal optimum
sustainable population levels, the general impact of human
activities on the marine environment, and the conseguences of
pollution on the health and stability of the marine
environment.
The legislative history of the Act demonstrates that when
Congress chose to seek the "Optimum Sustainable Population"
("OSP") of marine mammals, it was responding to testimony
regarding the importance of considering the animals part of a
larger ecosystem. Dr. G. Carleton Ray of the Marine Mammal
Council suggested Congress use ecosystems to define OSP. As
he stated before the House Subcommittee on Fisheries and
Wildlife Conservation:
The concept of "sustainable yield" is important
and it is clear that such a yield must not be
calculated merely in economic terms . . . what
is "optimum" from the point of view of economic
yield may not be optimum in terms of a species
or population in its environment. A part of
the difficulty in management practice is that
it has been in terms of human needs, rather
than in terms of the needs of ecological
balance within a natural ecosystem. 24
Dr. Ray continued, "[w]hen we are speaking of just plain
scientific fact and biology you cannot always protect an
animal by protecting the animal. You have to protect this
24 House Hearings at 401-02.
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190
habitat and you will protect the animal." 25 In response to a
later written request for a distinction between "sustainable
yield" and "optimum yield," the panel which included Dr. Ray
responded:
"Optimum" may be defined according to various
criteria. The economic view might be the
maximum number of the most salable animals that
can be taken without causing decline.
Biologically, the optimum yield might be less
because the wildlife manager felt that some
surplus animals were necessary for population
or ecosystem health. 26
A representative of the Department of the Interior also
emphasized the need to consider marine mammals as part of a
larger dynamic in defining OSP. Joseph P. Linduska, Associate
Director of the Bureau of Sport Fisheries and Wildlife,
stated: "Populations of wild creatures are not and cannot be
isolated from other elements of the environment under the
assumption that such isolation will insure their continued
existence. On the contrary, wild animal populations are
living, dynamic entities which act and react with each other
and with their environment. . . ," 27
In the Senate debates, Senator Stevens noted that in
defining OSP, "[t]he well-being of the entire ecosystem must
2S Id. at 416.
26 Id. at 438-39.
27 Id. at 152.
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191
therefore be kept in mind. It also requires a judgment, not
only on the maximum population of the species, but on the
maximum total productivity of the environment including all
constituent elements." 28
Numerous witnesses also emphasized the importance of
continued management to the health of ecosystems in light of
existing human interference. Thomas L. Kimball, then
Executive Director of the National Wildlife Federation,
expressed this position with exceptional emphasis.
Modern man . . . has so disrupted our planet
and ecology, poisoned and polluted the
environment, that the only hope for much of the
world's wildlife is for man to utilize his
great powers of reason, science, technology,
and persuasion to overcome or minimize the
adverse impact of his own intrusion into the
plant and animal ecosystem. 29
Dr. G. Carleton Ray wrote to the Senate subcommittee,
" [i]t must be apparent that man has already perturbed all of
the earth's ecosystems and it is now our clear duty, as
conservationists, to protect the future health of these
ecosystems by managing them wisely at an international
level." 30 In his oral testimony before the House, Dr. Ray
■"118 Cong. Rec. 25,258 (1972).
29 House Hearings, at 75.
30 Qcean Mammal Protection: Hearings on S. 685. et al.. Before the
Subcomm. on Oceans and Atmosphere of the Senate Comm. on Commerce . 92d
Cong.,' 2d Sess. 836 (1972) [hereinafter Senate Hearings).
[19653-0O01/DA94O59O.060] -21-
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noted that "no ecosystem on earth has escaped the hand of man.
We have already intervened, and often deeply, in systems
involving marine mammals. Therefore, we must manage, if only
to assume [sic] that this intervention is kept in control." 31
Congressman Dingell also advocated protecting marine
ecosystems. "The controlling issue in the controversy between
these two views must necessarily be what is best for the
animals themselves and for the ecosystems upon which they, and
possibly we, depend." 32
Witnesses discussing the management approach that should
be employed under the MHPA also referred to the need for a
comprehensive, ecosystem-based program. As Dr. Kenneth Norris
of the Marine Mammal Council testified before the Senate
subcommittee :
The management should be based not only upon
the biological health of the individual
species, but upon the health of the ecosystem
of which it is a part. . . . Such management
must be based upon continuing reappraisal of
the health of both animal and ecosystem. . . .
Enlightened management today is no longer
species management, it is instead ecosystem
management . 33
31 House Hearings, at 402.
32 118 Cong. Rec. 7685 (1972).
33 Senate Hearings, at 359-60.
[ 19653-0001 /DA94O590 060) -22-
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Howard Pollack, then Deputy Administrator of the National
Oceanic and Atmospheric Administration, expressed a similar
sentiment when he testified that "any conservation program for
a particular species must not only include studies of that
species, but also other organisms which interact with that
species in the marine environment, and indeed the environment
itself." 34
Another government witness, Dr. Lee Talbot of the Council
on Environmental Quality, drew a careful distinction between
management for human versus ecological purposes. As he
explained:
[I]t is possible to manage a wild species for a
maximum sustained yield under conditions which
may alter or make less stable other parts of
the environment. Therefore, the maximum
sustained yield in some cases may not be
necessarily the yield level at which the
optimum environmental balance . . . may be
maintained. . . . the objective of management,
as we see it, should not be purely economic
gain . . . but environmental balance and
economic gain consistent with that. 35
In 1988, the MMPA was amended to reguire the preparation
of conservation plans for depleted marine mammals. 36 In doing
so, Congress emphasized in the legislative history the need
for an evaluation of the relationship between the species or
■"Senate Hearings, at 426.
35 Id. at 146-47.
36 See 16 U.S.C.A. S 1383(b).
[19653-0001/DA940590.060) -23-
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194
stock and the ecosystem of which it is a part. Thus, the
conservation plans were to include: "(1) an assessment of the
status of the species or stock and its essential habitat; (2)
a description of the nature, magnitude, and causes of any
population declines or loss of essential habitat; (3) an
assessment of existing and possible threats to the species and
its habitat," among other things. 37 Similarly, the legislative
history on the section of the Act granting the Secretaries the
power to grant permits to take marine mammals recognized that
such permits were more likely to be necessary along the coast
of Alaska given the large numbers of marine mammals there and
directed the Secretaries to "work closely with the State of
Alaska and affected user groups, especially Alaskan Natives,
to develop effective conservation programs for marine mammals.
These could include assessments of populations and their
fluctuations, essential habitat, threats to species and
habitat, and research and management needs." 38
In many cases, concern for protecting the health of the
ecosystems that include marine mammals took the form of
statements regarding the impacts of pollution, witnesses and
Members commented on the need for future study and noted that
37 S. Rep. No. 592, 100th Cong., 2d Seas. 24 (1988).
38 H.R. Rep. No. 970, 100th Cong., 2d Seas. 28 (1988).
[196S3-0001/DA940S90.060] -24-
195
the taking of marine mammals by humans is only one of many
causes of the decline of species and population stocks.
Richard Denney, wildlife consultant for the American
Humane Association, discussed a variety of threats to fur
seals, including ocean debris, in his testimony. At the close
of his opening statement, he noted: "[i]t has been intimated
that the oceans are already the worst enemies of marine
mammals, causing the death of thousands from pollution. If
this is true, no amount of total protection will 'save' them -
the primary objective should be international abatement of
habitat degradation." 39 As Senator Hollings replied:
That is the point, isn't it, Mr. Denney, that
you take into account the entire ecosystem?
The pollution caused to walrus and sea otter
and other species from cadmium, mercury, DDT
and all the other things that go into the
ecology [sic] computer? . . . why not use that
reverse approach? Don't lift off a moratorium
until techniques develop and demonstrate to the
Congress that a meaningful and persuasive case
can be made to have open season again! 40
The Director of Environmental Affairs for the Isaak
Walton League, Ted Pankowski, similarly stressed the
interconnected causes of marine mammal decline and ecosystem
impacts in his testimony before the House subcommittee.
[A] total ban on the taking of animals is no
guarantee that a species will survive or do
39 Senate Hearings, at 522.
40
Senate Hearings, at 522-23.
[196J3-O001/DA94O590.060) -25-
196
well. Because of other, more critical factors,
it may only hasten that unhappy day. The
committee knows them well — the destruction of
habitats, the poisoning of environments,
manipulation of resources that upset natural
balances, over killing ... an effective
marine mammals bill must take all of these into
account. 41
Mr. Pankowski stated further: " [w]e must realize that if the
marine environment is permitted to deteriorate to a critical
point, whether or not marine mammals are deliberately killed
may become academic." 42
Reflecting these concerns, the report accompanying the
1971 House bill that became the MMPA noted the threats to
marine mammals from ocean dumping, pesticides, heavy metals,
reduced levels of herring for food, and high speed boats. The
report summarized: "[m]an's taking alone, without these
factors, might be tolerated by animal species or populations,
but in conjunction with them, it could well prove to be the
proverbial straw added to the camel's back." 43
In this manner, Members of Congress, government officials
and representatives of concerned interest groups expressed the
common view that successful marine mammal protection required
ecosystem protection as well. Now, more than 20 years later,
41 House Hearings, at 516.
42 Id. at 520.
' 43 H.R. Rep. No. 707, 92d Cong., 1st Sess. 15 (1971)
[19653-0001/DA94O590.060] -26-
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the accuracy of this assessment is becoming increasingly
apparent. Unfortunately, the tools needed to react to
ecosystem-based problems are lacking.
III. CONCERN OVER MARINE ECOSYSTEM DEGRADATION
EXPRESSED UNDER OTHER LAWS
Although the MMPA provides one of the strongest
statements of policy in favor of marine ecosystem protection,
concern has also been expressed under other United States laws
and international agreements for the health of the marine
ecosystems, in general, and the Bering Sea, in particular.
Alaska Natives have for many years been calling attention to
the need for ecosystem-based research and management in the
Bering Sea.
For example, residents of the Pribilof Islands have been
concerned over the health of the Bering Sea ecosystem since
the mid-1970s. At that time, the thinning of fur seal pelts
became apparent, which gave rise to concern over the
possibility of pollution impacts or food stress affecting the
herd and other components of the Bering Sea ecosystem.
Representatives of the Pribilofs began working with academic
institutions and government agencies to assess ecosystem
health and stability. In general, government agencies did not
heed these concerns that widespread changes were occurring in
the Bering Sea that reguired detailed research.
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Concerns over the health and stability of the marine
environment and the Bering Sea ecosystem were expressed
repeatedly during deliberations over the Protocol to extend
the International Convention on the Conservation of the North
Pacific Fur Seal (the "Convention") in the 1980's. The one
issue that both opponents and proponents of the Protocol
agreed upon was the need for an ecosystem-based approach to
protecting and managing the resources of the Bering Sea and
the North Pacific Ocean.
In 1981, Alaska Governor Hammond testified on Senate
ratification of the 1980 Protocol to extend the Convention by
highlighting the need to retreat from single-species
management approaches. As he stated:
The issue which is brought to the fore is
whether we are in fact attempting to achieve a
systems management approach (as is desirable) ,
including maintenance of healthy populations of
those components affected by man, or whether we
are pursuing mutually exclusive goals for
different species or groups which will
eventually have undesirable yet unnecessary
consequences. At present we are unfortunately
working toward the latter, at least in the
North Pacific and Bering Sea regions. 44
This concern was echoed in testimony submitted by the
Villages of St. George and St. Paul, where it was stated,
•• [i]n light of our experience it would be unwise to ignore the
^orth Pacific Fur Seals; Hearing Before the Senate C orrro. on
Foreign Relations , 97th Cong., 1st Sess. 55 (1981).
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fact that the ecosystem in the Bering Sea must be managed as a
whole." 45
Environmental organizations voiced similar concerns. For
example, the Center for Environmental Education (now the
Center for Marine Conservation) emphasized that marine
ecosystem health and stability is the primary goal of the
MMPA. The Center called attention to the numerous problems
that result from the failure to fulfill this goal and manage
marine ecosystems from a multi-species perspective:
With single species management, attention is
focused on the dynamics of particular species
or stocks without explicit regard to the
interactions between those species or stocks
and other components of the ecosystem;
Single species management depends on a degree
of stability and resilience of the resource
that may not exist;
Attention is focused on the output from
resource use, without regard to the input of
energy, of other natural resources, and of
human skill and labor required to secure the
output ;
Single species management may admit, and even
encourage, overexploitation.
The greatest problem facing policy makers is
that presently we have insufficient information
about the numerical and functional
relationships between species. Diligent
acquisition of such information is of utmost
importance if we are ever to be able to make
conscientious resource management decisions.
We must be able to predict the effects of
proposed management strategies, recognizing
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that sometimes these careful predictions may be
askew. Successful monitoring programs which
afford early detection of changes relevant to
management strategies are ultimately highly
cost effective. These programs allow us to
avoid costly crisis oriented management. 46
The National Audobon Society expressed the same concern.
Elvis Stahr testified for the Society that:
There is a most serious need to provide greater
long-term protection to the marine environment
of the Bering Sea and to the nationally and
internationally significant marine bird
colonies on the Pribilof Islands. A first step
has been the inclusion of critical portions of
the Pribilofs in the Alaska Maritime National
Wildlife Refuge created by the Alaska National
Interest Lands Conservation Act of 1980.
We urge your Committee to explore ways in which
existing international agreements can be
strengthened, and new agreement forged with
Pacific rim countries, to better protect marine
waters of the Bering Sea from dangerous
pollution and overutilization of resources,
particularly fish on which marine birds and
mammals rely for sustenance. 47
These concerns were ultimately reflected in the
Proclamation signed by the President in support of the 1980
Protocol. President Reagan specified in the 1981 Proclamation
that studies were required on the relationship between the
size of the fur seal harvest and health of the Bering Sea
ecosystem and that the impact of alternative forms of
46 Id. at 60.
47 Id. at 59.
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employment for the Aleuts on the fur seal herd and the Bering
Sea ecosystem. 48
These themes were repeated in 1985 during hearings on
ratification of the Protocol to extend the Interim Convention
on the Conservation of the North Pacific Fur Seal. Larry
Merculieff, then President of the Tanadgusix Corporation,
expressed strong concern over the disjointed and species-
specific approach to marine resources management in the Bering
Sea and elsewhere. Sounding a theme that is now widely
accepted by scientists and resource managers, Mr. Merculieff
called for a more comprehensive approach to protecting marine
mammals and managing marine resources. Noting the population
distress being experienced by fur seals, sea lions, and two
Bering Sea bird species, he called for an ecosystem-based
approach for managing the Bering Sea. Mr. Merculieff
explained that " [scientists from all disciplines, including
seal scientists, agree unanimously that this approach is
essential for rational resource management, but all are
frustrated by the inherent problems." 49 As it was further
stated:
We . . . find it disconcerting that scientists
from the different disciplines . . . and from
^Presidential Proclamation (Oct. 14, 1981), 32 UST S881, S882.
4 North P acific Fur Seal Treaty: Hearings on Treaty Doc. 990-5
Before the Sen ate Comm. on Foreign Relations . 99th Cong., 1st Sess. 257
(1985)' (statement of L. Merculieff).
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different bureaucracies are not coordinating or
synthesizing data on the species related in
food webs in the Bering Sea. Apparently this
is systemic and not atypical of many scientific
research programs. 50
Speaking specifically to the problem of fur seal, sea
lion, and seabird population declines in the Bering Sea, Mr.
Merculieff noted the link between these species and their
reliance on pollock as a part of the food web upon which they
were dependent was noted. The testimony called for the
establishment of a research program that would study the
marine ecosystem as whole. 51 This view also drew support from
the environmental community, 52 but no action was taken.
The importance of ecosystem-based research, management
and protection initiatives also has been addressed under the
Magnuson Act. Like the MMPA, the Magnuson Act includes a
statutory requirement directed at marine ecosystem concerns.
The Magnuson Act seeks to subject fisheries to "sound
management . . . so as to provide optimum yields on a
continuing basis." 53 The term "optimum" is defined as "the
amount of fish . . . which is prescribed . . .on the basis of
50 Id. at 251.
S^ Id. at 211 (statement of David R. Cline, National Audobon Society) ,
256 (statement of E. V. Curtis Bohlen, World Wildlife Fund).
53 16 O.S.C S 1801(a)(5).
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the maximum sustainable yield ... as modified by any
relevant economic, social, or ecological factor ." 54 The
reference to an "ecological factor" in the Magnuson Act is
clearly intended to reguire modifications to maximum
sustainable yield fishery levels when necessary to ensure that
fishing levels will not disrupt the balance of marine
ecosystems, such as by over-fishing prey species for marine
mammals and seabirds.
In 1989, the demand for comprehensive multi-species-
oriented management of marine resources was taken up by 41 of
the world's leading marine biologists in testimony submitted
under the Magnuson Act. The scientists noted that marine
ecosystems are complex and subject to naturally occurring
changes in their constituent elements. However, human
interventions "can and do have stabilizing or destabilizing
influences on the natural variability and cause or accelerate
severe shifts in the composite ecosystem." 55 They noted the
severe destabilizing impacts of these interventions in several
fisheries around the world. To address this problem, the
scientists called for, among actions, amendments to the
Magnuson Act "to promote a total ecosystem perspective in
managing the Nation's fish stocks, taking into account the
54 Id=. S 1802(1) (emphasis added).
"statement of Concerned Scientists on the Reauthorization of the
Magnuson Fishery Conservation and Management Act 3 (1989).
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protection of essential habitat, including the habitats
essential to early life histories, and consideration of marine
species neither harvested nor conserved." 56
Recognizing the need to address predator-prey
relationships and other ecological factors in setting fishery
harvest levels under the Magnuson Act, the Marine Mammal
Commission in a 1990 report to the Secretary of Commerce on
the marine mammal incidental take program under the MMPA
recommended that decision-making under the Magnuson Act follow
a more comprehensive, ecosystem-based approach. As the
Commission stated:
The reference to "ecological factor" in the
definition of "optimum yield" is interpreted by
the Marine Mammal Commission to mean that, to
collectively give effect to the Marine Mammal
Protection Act and the Magnuson Fishery
Conservation and Management Act, the Fishery
Management Councils and the National Marine
Fisheries Service must insure that estimates of
optimal fishery yields take into account food
requirements (and uncertainties related
thereto) of marine mammals and define
"overfishing" to include any fishery-related
reductions in fish or shellfish stocks that
would result in reduction of marine mammal
populations below their maximum net
productivity level calculated with respect to
abundance prior to fishery development. 57
56 Id. at 4.
57 Marine Mammal Commission, Recommended Guidelines to Govern the
Incidental Taking of Marine MammalB in the Course of Commercial Fishery
Operations After October 1993 , (July 1990).
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To address this concern, the Commission recommended that
Magnuson Act regulations be developed to require the
relationship between fisheries yields and marine mammal food
requirements be taken in account in setting commercial fishing
catch limits. This action has not been taken.
In recent months, Alaska Natives have once again called
for Congressional action under the Magnuson Act to foster
ecosystem-based research and management and to prevent fishing
from occurring at levels that deplete other resources. As
stated in testimony before the House Merchant Marine and
Fisheries Committee that: "[ conventional wisdom is telling
everyone that the [pollock] fishery is healthy in the Bering
Sea but . . . fourteen key species are in decline, at least
six of which are in the pollock food web." 58 These systemic
indicators are ignored at the peril of those dependent on the
ecosystem, and its was recommended that the species-specific
approach to management under the Magnuson Act give way to a
more progressive ecosystem management regime. 59
Similar testimony was submitted before the Senate
Commerce Committee that •• [e]cosystem approaches to research
Hearing on Reauthorization of the Magnuson Fiaherv Conservation and
Management Act before the Housb Subcommit t ee on Fisheries Management. House
Committee on Merchant Marine a n d Fisheries . April 21, 1993 (testimony of
Larry Merculieff).
59!
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and management need to be pursued vigorously. Conventional
approaches are not working. The Magnuson Act reauthorization
must take into account the reality of the inter-relationships
among the species and the ecosystem which those species live
in." 60 Accordingly, he recommended that the Magnuson Act be
amended "to ensure that the health of the ecosystem as a whole
will allow a sustained biological diversity and thereby
healthy communities and a healthy sustainable industry." 61
IV. DECLINE OF TEE BERING SEA ECOSYSTEM
Over the last 20 years, the Bering Sea ecosystem has
undergone significant reductions in a number of its component
species. During this time period, populations of Northern fur
seals, Steller sea lions, harbor seals, and four species of
fish-eating seabirds, (thick billed-murres, common murres,
black-legged kittiwakes, and red-legged kittiwakes) have all
experienced substantial, unexplained declines in their number,
indicative of an ecosystem-wide injury. Several important
Beringian waterfowl species, including Pacific brant geese,
emperor geese, spectacled eider and Steller' s eider have also
undergone population declines that are not fully understood.
60 Hearina on Reauthorization of Magnuson Fisheries Conservation and
Management Act before the Senate Subcommittee on Merchant Mari ne. Senate
Committee on Commerce. Science and Transportation . June 30, 1993 (testimony
of J. Anthony Smith).
[19653-0001/DA940590.060] -36-
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Presently, the cause or causes for these declines are not
known; however, a list of potential causes includes
entanglement in lost or discarded fishing gear, incidental
take in driftnet, trawl, and other fisheries; decreased food
availability due to overharvesting of pollock or other
finfish; decreased food availability due to climate or other
natural changes affecting the distribution, abundance, or
productivity of important prey species; natural diseases;
intentional shooting; and environmental pollution. 62
Regardless of the precise reason these changes are occurring,
the fact remains that a major unexplained reduction in numbers
of animals in the Bering Sea has taken place. Such
reductions, left unchecked, may result in irreversible change
in the structure and productivity of the entire ecosystem.
Traditionally, the Bering Sea has maintained a high level
of biological productivity, supporting a substantial food web
which includes up to 25 species of marine mammals, 32 species
of seabirds, 30 species of waterfowl, and sizable populations
of fish. In turn, this productivity has allowed the Bering
Sea to play host to a number of commercial industries. Prior
to 1900, economic attention centered around the acquisition of
Northern fur seal and sea otter furs. Overhunting soon
62 Gordon L. Swartzman and Robert J. Hofman, Uncertainties and
Research Needs Regarding the Bering Sea and Antarctic Marine Ecosystems 1
(Final Report for Marine Mammal Workshop Held December 12-13 1990).
[19653-0001/DA940590.060] -37-
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depleted these animals, thus shifting the economic focus to
fisheries. While initially salmon, herring, halibut and crab
were the primary catch, within the past 30 years, pollock has
become by far the most significant fishery in the Bering Sea. 63
Since the mid-1970s, a number of the Bering Sea's
populations of marine mammals, seabirds and waterfowl have
suffered dramatic declines in their numbers. Of the marine
mammals, Northern fur seals, Steller sea lions and harbor
seals have all been greatly reduced in population size. The
Steller sea lion, whose population size dropped from greater
than 100,000 in the 1970s to a mere 35,000 today, is in such a
state of decline that it is now listed as a threatened species
under the Endangered Species Act, and it is a serious
candidate for downlisting to endangered. In addition, the
Northern fur seal has declined from a population of about 1.8
million in the 1950s to roughly half that figure today, thus
gualifying as a depleted species under the MMPA.
In addition to marine mammals, seabirds and waterfowl of
the Bering Sea have also suffered significant declines in
their number. In the Pribilof Islands, recognized as home to
the largest seabird colonies in the Bering Sea, and among the
largest of the Northern hemisphere, some colonies of murres
and kittiwakes may have declined by as much as fifty percent
*Id. at 12.
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in the period from 1976 to 199 l. 64 In the past twenty years
Pacific brant geese have declined approximately twenty percent
and Bering Sea colonies have declined up to sixty percent. 65
Emperor geese rely on the Bering Sea throughout the year and
their population has declined seventy percent in the past
thirty years. Spectacled eiders and Steller's eiders may have
declined up to ninety and fifty percent, respectively, in the
past twenty years. Spectacled eiders are listed as threatened
species under the Endangered Species Act and the Steller's
eider is proposed for similar listing.
While a variety of explanations have been advanced to
account for these radical declines in Bering Sea animal
populations, none have proven wholly satisfactory. 66 As
Russian scientist Alexander Golovkin has stated, " [i]n a
balanced and dynamically stable environmental system, all
components of the food web are interrelated and react keenly
to changes in population dynamics of any of the
participants." 67 Thus, regardless of the explanation, an
64 Alexander N. Golovkin, Colonial Seabirds of the Pribilof Islands 1,
7 (August 1991) (on file with the City of St. Paul).
65 Letter from Christian P Dau, Wildlife Biologist, United States
Department of the Interior, Izembek National Wildlife Refuge, to Larry
Merculieff, Coordinator, The Bering Sea Coalition (October 26, 1993).
66 See Swart zman and Hofman, supra , at 1-6.
67 Golov)cin, supra , at 16.
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injury to any one part of the Bering Sea ecosystem will almost
certainly impact the entire ecosystem.
In this mutually dependent relationship, removal of one
component part necessarily effects all the other parts.
Therefore, one theory that may help to explain the current
problems in the Bering Sea points to the fantastic growth in
the Bering Sea pollock fishery as being responsible for the
recent marine mammal, marine bird and fish population
declines. According to Dr. Golovkin, "[p]ollock presently
constitute about 52% of the diet of Pribilof seabirds, about
85% of the total fish biomass of the region, and about 85% of
the summer diet of fur seals." 68 Moreover, Golovkin calculates
that the total combined consumption of pollock by birds and
fur seals in the Pribilof region theoretically exceeds the
average total biomass of edible pollock in the same region. 69
Lacking a single, definitive explanation for the marked
decline of these populations and in light of their
demonstrated inter-reliance, the existing crisis can only be
the result of, and result in, ecosystem-wide impacts.
Therefore, in the face of causal uncertainty, all potential
causes must be examined, and if needed, addressed through an
ecosystem-wide approach.
*id. at 12.
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V. OTHER MARINE ECOSYSTEMS IM DECLINE
The Bering Sea is perhaps the most pressing example of a
marine ecosystem currently in decline. Unfortunately, it is
not the only example. The Gulf of Alaska is the home to
numerous species of marine mammals and marine birds whose
populations are experiencing declines or whose status remains
uncertain. This region now shares many of the problems which
are affecting the Bering Sea, and declines in both ecosystems
are interrelated since the marine mammals and marine birds
inhabit the Bering Sea and the Gulf of Alaska.
On the East Coast, the Chesapeake Bay, considered one of
the world's most productive estuaries and home to several
marine mammal species, is showing signs of disturbing declines
in species such as submerged aquatic grasses, striped bass,
shad, oysters, clams, waterfowl and a decrease in the overall
Bay water quality. 70 Scientists have also become concerned
over the decline in numbers of the once abundant Chesapeake
Bay Blue Crab. 71 These contemporaneous, unexplained declines
are indicative of an ecosystem-wide injury.
"Chesapeake Bay Critical Area Commission, Critical Area and You: The
Chesapeake's First Line of Defcnnp 1 (Hugh M. Smith ed. , n.p., n.d.).
71 D'Vera Cohn, As Crab Y ield Falls. Scientists Claw for Clues . Wash.
Post, August 8, 1993 at Al, A18.
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Also on the East Coast, several fish stocks have been
severely depleted (herring, haddock, hake) as a result of
overfishing in the Georges Bank marine ecosystem off the coast
of New England. The effect of this overfishing is not fully
understood, but it may be causing, or be the result of,
systemic injury. 72
On the West Coast, overexploitation of the Pacific
sardine has led to a number of questions regarding ecosystem-
wide impacts in the California Current region. It has been
observed that " [r]emoval of a major component such as the
Pacific sardine (unexploited biomass averaging about 3 million
tons) from the California Current food web would presumably
have measurable effects on other components of the
ecosystem." 73 Notable in this context, concurrent with the
crash of the Pacific sardine fishery, brown pelicans, which
72 ln response to this depletion, the United States Department of
Commerce ( "DOC" ) has recently imposed an emergency rule prohibiting haddock
fishing in certain areas of Georges Bank The DOC noted:
[Hjaddock stocks on both Georges Bank and in the Gulf of
Maine . . . are at all-time low levels of abundance.
Adult stock biomass is lower now than at any point since
the inception of stock assessments. Haddock landings in
1993, which reflect the stock condition, are expected to
be the lowest in recorded history.
59 Fed. Reg. 26, 27 (January 3, 1994).
73 Alec D. MacCall, Changes in the Biomass of the California Current
Ecosystem , in Variability and Management of Large Marine Ecosystems 33, 40
(Kenneth Sherman and Lewis M Alexander eds., 1986).
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rely upon sardines as a food source, began experiencing
significant levels of reproductive failure. 74
Additionally, recent events in the Caribbean Sea indicate
that it too is suffering from an ecosystem-wide injury. These
include "overfishing of reef resources, an epizootic of the
spiny sea urchin . . ., widespread bleaching of corals, plus
white band and black band diseases, fish kills, oil pollution,
mining, land erosion associated with deforestation, and
population declines of several species of sea turtle." 75
Moreover, an increase in the already substantial number of
cruise ships, departing from a number of countries, but
largely from the United States, will further stress the
Caribbean ecosystem. 76
From an international perspective, the recent United
Nations conference on the depletion of fisheries worldwide has
prompted scientists and other observers to reflect on the
impact of fishing on other portions of the marine ecosystem.
The United Nations Food and Agriculture Organization has
acknowledged that overfishing has disrupted the food chain and
caused massive collateral damage to species like porpoises,
74 Id. at 47.
75 William J. Richards and James A Bohnsack, The Caribbean Sea A Large
Marine Ecosystem in Crisis in Large Marine Ecosystems . 44, 45 (Kenneth
Sherman, Lewis M Alexander and Barry D. Gold eds., 1990).
76 Id. at 51.
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sea turtles and whales in a number of marine ecosystems. 77
Additionally, some fisheries that are already closely managed
are nevertheless in decline, suggesting that ecosystem health
issues such as habitat destruction or persistent pollution may
be impacting the stocks. As the participants in this
conference have recognized, making management decisions on the
basis of looking only at individual constituent elements of
marine ecosystems no longer represents an adeguate response to
the systemic problems plaguing the oceans and coastal regions
today. 78
On an international level, numerous large marine
ecosystems have experienced, or appear to be entering, periods
of system-wide degradation and injury to living marine
resources. A partial list of these areas includes the Barents
Sea, the North Sea, the Great Barrier Reef, the Gulf of
Thailand, and the Yellow Sea. The problems that have been
documented in all of these areas would benefit from the
application of ecosystem-based research and management
programs .
77 Plunderinq the Seas , N.Y. Times, Aug. 2, 1993, at A14
78 Id. . see aleo International Union for the Conservation of Nature
( " IUCN" ) ; Draft Guidelines For the Ecolooical Sustainabilitv of
Nonconsumptlve and Consumptive Pees of Wild Species , May 28, 1993 at 3
(which, if adopted by the IUCN General Assembly will "provide Criteria and
Requirements .... intended to guide policies, laws and administrative
procedures [of member States] aimed at ensuring that any uses of wild
species are sustainable and that the affected species and their supporting
ecosystems are conserved.").
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VI. PROPOSED MMPA AMENDMENT
To address these problems, prompt action is required to
identify the most critical uncertainties and research needs.
Because so little is known about the ecology and biological
relationships of large marine ecosystems and how to take
account of this uncertainty in management and protection
programs, it is necessary to begin with a thorough,
comprehensive review of the scope and magnitude of the problem
and how it might be overcome. This is the approach
recommended in this proposal. In the case of the Bering Sea,
where widespread population declines have been documented, a
more aggressive approach is required to build upon existing
data and knowledge and, as soon as possible, undertake
meaningful ecosystem-based resource management and marine
mammal and seabird protection programs. In the past,
undertaking such effort has been frustrated because several
different agencies with conflicting objectives and
responsibilities were involved. To circumvent these problems,
a Congressional mandate to pursue these initiatives through an
independent, objective review body is required.
The approach called for in this proposal is intended to
identify and prevent ecosystem-wide injury before it reaches a
crisis stage. As a case in point, the recently released
Report of the Forest Ecosystem Management Assessment Team
addressing the ecological, economic and social issues arising
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under the northern spotted owl controversy, points to the need
to use an ecosystem-based management program to reverse the
many wildlife species problems occurring throughout the
Pacific Northwest. In that context, the crisis has already
taken hold, with several wildlife species and vital economic ■
interests that depend upon natural resource utilization in
jeopardy. With foresight in research and management, it
should be possible to avert these problems before they occur
in the Bering Sea and other large marine ecosystems. If
ecosystem-based research, management, and protection
initiatives are not initiated soon for the marine environment,
in general, and the Bering Sea, in particular, the northern
spotted owl crisis in the old growth forests of the Pacific
Northwest may soon be accompanied by an equally severe crisis
on the high seas off the coast of Alaska or elsewhere.
For purposes of carrying out the proposal described in
this report, the following amendment to the MMPA is requested:
Amend section 110 of the MMPA by adding new subsections
(b) and (c) to read as follows:
(b) (1) The Secretaries of Commerce and the Interior,
in consultation with the Marine Mammal Commission, shall
within 60 days of enactment contract with the National Academy
of Sciences for an independent assessment of natural and
anthropogenic factors affecting the health and stability of
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marine ecosystems of which marine mammals are a part, and
measures necessary to restore and maintain those large
ecosystems and their key components (particularly those in
whole or in part under United States jurisdiction or subject
to United States obligations under international agreement) in
the state which will:
(A) ensure the fullest possible range of management
options for future generations;
(B) allow the sustainable consumptive and non-
consumptive uses of renewable resources;
(C) permit non-wasteful, environmentally sound
development of non-renewable resources; and
(D) ensure and protect the continued availability
of marine mammals and other living marine
resources for subsistence and handicraft
purposes by Aleuts, Eskimos and Indians who
dwell on the coast of the North Pacific Ocean
or the Arctic Ocean.
(2) The report of the study required by this section
shall include:
(A) definitions of "large marine ecosystem" and
"key ecosystem components" that would be useful
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for long-term conservation and management
purposes as defined in § 3(2) of this Act;
(B) a description of the areas that meet the
definition of "large marine ecosystem"
developed under paragraph (b) (1) (A) ;
(C) a list and general description of the physical
and biological characteristics and key biotic
and abiotic components of those marine
ecosystems ;
(D) an inventory of available data and data sources
for: (i) determining the present state of, and
threats to, the key components of the large
marine ecosystems identified pursuant to
paragraph (b)(1)(B); and (ii) establishing the
information baselines which, in conjunction
with long-term monitoring programs, would be
necessary to detect changes in key ecosystem
components and to differentiate between changes
caused by natural and anthropogenic factors;
(E) a description of, and explanation of the
rationale for, actions that should be taken to
improve the comparability, accessibility, and
utility of existing databases and data
collected in the future to assess and monitor
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the state of key ecosystem components and to
evaluate the effectiveness of environmental and
resource conservation programs;
(F) a description of actions that would be required
to identify gaps in knowledge of: (i) basic
ecosystem structure and dynamics; (ii) the
current status of, and the numerical and
functional relationships among, key ecosystem
components; (iii) how key ecosystem components
have been and are being affected, directly and
indirectly, by human activities; and (iv) how
the key ecosystem components might respond to
alternative management strategies;
(G) recommendations for research and monitoring
programs necessary to fill the identified
critical data gaps, establish adequate
baselines, and detect and be able to determine
the probable cause or causes of changes in key
ecosystem components;
(H) establishment of a process to utilize Alaska
Native organizations and traditional Native
local knowledge to conduct research into the
environmental factors, population dynamics and
ecological relationships that control, or
[19653-O001/DA94059O.060] -49-
220
structure, such ecosystems, or affect the use
of components of such ecosystems for
subsistence purposes; and
(I) such other information, analyses, or
recommendations as the Academy believes
necessary to provide for environmentally sound
conservation and management of marine
ecosystems and their component parts.
(3) The Secretaries shall request that the National
Academy of Sciences submit a final report containing the
results of its review to the Secretaries not later than 24
months after enactment. The Secretaries shall transmit copies
of the report to the Senate Committee on Commerce, Science,
and Transportation and the House Committee on Merchant Marine
and Fisheries, together with such comments as the Secretaries
and the Marine Mammal Commission deem appropriate, not later
than 90 days after it is submitted by the National Academy of
Sciences.
(4) Of the funds authorized to be appropriated to the
Secretary by this section, such amounts as are required shall
be available to carry out this subsection.
(c) (1) The Secretaries of Commerce and the Interior, in
consultation with the Marine Mammal Commission, shall,
commencing within 180 days of enactment, undertake a long-term
[19653-0001/DA940590.060] -50- 3/3/94
221
scientific research program to monitor and promote the health
and stability of Bering Sea marine ecosystem and to fill data
gaps and resolve uncertainties concerning the causes of, and
necessary actions to reverse, population declines of marine
mammals, marine birds, and fish stocks of that region. Such
program shall address, but be need not be limited to, the
research recommendations that will be included in the report
to be issued in 1994 by the National Academy of Sciences,
under contract with the Department of State, on the Scientific
and Technical Understanding of the Bering Sea Ecosystem. The
long-term program established under this section shall include
research on subsistence uses of the biological resources of
the Bering Sea by Alaska Natives and how to best provide for
the continued opportunity for such uses.
(2) To the maximum extent practicable, the research
program undertaken pursuant to paragraph (c) (1) shall be
conducted in Alaska at a location or locations where
researchers will have access to the ecosystem studied, and
where the environmental systems and biotic and abiotic factors
can be monitored. As part of this process, when carrying out
research pursuant to paragraph (c) (1) of this section, the
Secretary shall, upon the request of a qualified Alaska Native
organization, contract with that organization to conduct such
research pertaining to the use of marine ecosystem resources
for subsistence purposes. Research facilities used pursuant
[19653-0001/DA940S90.060] -51-
BOSTON PUBLIC LIBRARY
3 9999 05706 7066
to this subsection shall be made available to the U.S. Fish
and Wildlife Service for interpretation and visitor service
purposes in connection with units of the National Wildlife
Refuge System in Alaska. The facilities shall be used as a
repository and clearinghouse for studies, research data,
abstracts and other information pertinent to the health and
stability of the Bering Sea. As deemed necessary and
appropriate, either the Secretary of the Interior or the
Secretary of Commerce shall establish additional research
support facilities in the Bering Sea region.
(3) The Secretaries of Commerce and the Interior and the
Commission shall specifically address the status and findings
of such research program in their respective annual reports to
Congress as reguired by sections 103(f) and 204 of this Act.
(4) Of the funds authorized to be appropriated to the
Secretary by this section, such amounts as are reguired shall
be available to carry out this subsection.
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